Remanded

M/S.Premier Distilleries (P) v. the Labour Court

Madras HC12 Oct 2017WP/14155/2010

Case brief

AI extract

What is this about?

Dismissal of workers for alleged workplace violence raised a dispute over adequate opportunity in the domestic enquiry. The Court set aside the reinstatement award and remitted the matter to management for a fresh enquiry with a new enquiry officer, advance disclosure of materials and adequate opportunity to the workers.

What did the court decide?

Reinstatement award set aside; matter remitted to management for a de novo domestic enquiry by a fresh enquiry officer, with advance supply of materials and adequate opportunity to workers.

M/S.Premier Distilleries (P) Vs the Labour Court — Labour and Industrial Disputes | Madras HC (2017)

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RESERVED ON : 28.11.2016 DELIVERED ON : 12.10.2017

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 12.10.2017

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CORAM :

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THE HONOURABLE MR. JUSTICE R.SURESH KUMAR

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W.P.No.14155 of 2010 and
WMP.No.29541 of 2016
M/s.Premier Distilleries (P) Ltd.,
Rep. By its Manager Mr.K.Sundaram
R.S.No. 62/8, Madugarai Road,
Mangalam, Pondicherry .. Petitioner
Vs
1. The Labour Court,
Pondicherry
2. E.Suganthi
3. K.Anjalai
4. S.Sathiyavani
5. S.Gowri
6. E.Anbarasi
7. E.Mahalakshmi
8. S.Muthuvalli
9. C.Kuppu
10. S.Ellammal
11.K.Mangai
12. P.Ellamal
13. K.Parasakthi .. Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of certiorari, calling for the records of the first respondent in ID.No.2 of 2006 quash the impugned proceedings dated 08/03/2010. For Petitioners: Dr.FR.A.Xavier Arulraj Sr. counsel for Mr.V.Sundareswaran For Respondent : M/s.Sai Bharath and Ilan 2 to 13

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ORDER

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This writ petition has been filed for the prayer of writ of certiorari to call for the records of the first respondent in I.D.No.2 of 2006 and quash the impugned order dated 08.3.2010 passed by the first respondent / labour court.

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The case of the petitioner as culled out from the affidavit filed in support of the writ petition is as follows:

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(i) That the petitioner is a private limited small scale industries registered with the Government of Puducherry, which was commenced on 10.09.2000. The petitioner is running a factory at Mangalam village where the activity of blending and bottling of Indian made foreign liquor (IMFL) is undertaken.

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(ii) According to the petitioner, the unit of the petitioner was started initially with 34 workers. When the factory was running smoothly, a group of workers i.e., the respondents 2 to 13 herein, on 1.10.2004 refused to undertake the work at the factory and they gathered in the entrance gate of the factory, and they, infact, raised slogans and prevented other workers from entering the factory premises.

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(iii) Because of the activities of respondents 2 to 13, an uncontrollable mob gathered and they behaved in a totally unruly manner and hurled the most abusive and filthy language against the management of the petitioner. It is further alleged in the affidavit that respondents 2 to 13 in fact, had prevented the entry of raw materials and also prevented the exit of about 6,400/- cases of IMFL goods worth about Rs.21,00,000/- for which, the petitioner had already remitted excise duty, and got permission to move away from the factory.

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(iv) It is the further case of the petitioner that though much persuasion went on, the disturbance caused by the mob consisting of respondents 2 to 13 did not come to an end, and they continued with their onslaught till the evening. They further prevented the workers, who go out in the evening hours after completing their work, with the result, literally all the other workers, including management personnel and staff, had been detained within the factory premises. It is further alleged that, at one point of time, there was a stone throwing on the work force, who returned from the factory, and the factory buildings and other apparatuses and materials were damaged. The mob also prevented the factory manager one Poogundram, and in fact, he sustained injuries. Thereafter, he underwent treatment in the hospital. Yet another staff by name, Manivel also sustained severe head injury and he was treated in the hospital. Because of this utter commotion, the employees of the petitioner

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factory had been literally detained and they were standard till 1 p.m midnight on the said day i.e., on 01.10.2004.

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(v) It is further alleged that, thereafter, the police help was sought for by the petitioner, and after the police force came in under the Sub-Inspector concerned, they tried to disburse the mob and even thereafter, these persons had been there till 05.10.2004. It is further claimed that because of this violent incident and the vulnerable situation created in the factory premises, by the unlawful activities on the part of the respondents 2 to 13, the petitioner had approached the competent civil court, by filing suit, seeking injunction order against these respondents, and the civil court also granted interim order of injunction on 08.10.2004 and thereafter, after hearing both sides, the order of interim injunction was made absolute till the disposal of the suit, by order dated 10.11.2004 and a final order to that effect was passed on 04.04.2005.

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(vi) In view of the said incident, the petitioner / management decided to send show cause notice to respondents 2 to 13. Accordingly, show cause notice was issued on 04.10.2004 asking reply to the show cause notice as to why action should not be initiated against them.

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(vii) In response to the show cause notice issued by the petitioner, they gave reply denying the allegations made in the show cause notice and thereafter, a domestic enquiry was proposed to be conducted on 26.1.2005 and in this regard, notices were sent on 22.1.2005 to all the respondents which they have received and in fact attended on 26.1.2005 for the domestic enquiry.

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(viii) When the Enquiry Officer suggested the respondents to have their assistance of any employee, they replied that, they themselves would appear and get on with the enquiry.

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(ix) On behalf of the petitioner's side 4 witnesses were examined, and when chance of cross examining the witnesses were specifically given to the respondents, they have not utilised the same and they infact, refused to cross-examine the witnesses produced on the petitioner's side. Thereafter, the respondents' side witnesses were examined, where, even though respondents 2 to 13 herein were present at the time of enquiry, respondents 2 and 5, namely, Miss.E.Suganthi and E.Anbarasi alone deposed before the Enquiry Officer, and other respondents had stated before the Enquiry Officer that, they would adopt the submissions made by R2 /Suganthi.

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(x) Based on the said enquiry, as witnesses were examined by both sides, and there were no further witnesses proposed to be

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produced by either side, the Enquiry Officer concluded the enquiry in the late hours on 26.1.2005 and thereafter, submitted the report before the petitioner.

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(xi) Based on the enquiry report submitted by the enquiry officer, where the charges framed against the respondents since had been proved, considering the gravity of the charges, the petitioner/management decided to terminate the services of respondents 2 to 13 and accordingly, individual order of termination were issued to all these respondents by the petitioner / management on 08.02.2005.

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(xii) As against the said order of termination, these respondents had raised conciliation proceedings which ended in failure as the petitioner did not agree for the conciliation proceedings. As per the reference of the Government, an industrial dispute was raised before the first respondent / labour Court, where these respondents 2 to 13 had filed claim petition in ID. No.2 of 2006. In response to the same, the petitioner / management filed written statement before the first respondent / labour Court.

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(xiii) The first respondent / labour Court after having considered the claim petition filed by the respondents 2 to 13 (petitioners before the labour Court) and the written statement filed by the petitioner herein who was the respondent in labour court proceedings, has ultimately passed the impugned order of award on 08.03.2010.

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(xiv) In the said impugned award, the first respondent / labour Court has come to a conclusion that the domestic enquiry conducted by the petitioner / management was not in consonance with law, as due opportunity was not given to the workers i.e., respondents 2 to 13 herein, and therefore on that basis, the learned Judge of the labour Court in the impugned award, has set aside the termination orders issued against these respondents, by allowing the ID, with a direction of reinstatement with consequential benefits. As against the impugned award dated 08.3.2010, the petitioner / management has filed this writ petition with the aforesaid prayer.

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On behalf of respondents 2 to 13, a common counter affidavit has been filed by the 12^th respondent.

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According to the said counter, the respondents stated that, on 04.10.2004, a letter was given to them stating that they did not attend the job assigned to them on 01.10.2004 at about 9 hours and they instructed the co-workers to stop work and used filthy languages against the manager and management and caused loss to the factory by stopping production, confined the employees inside the factory and was a member of unlawful

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assembly, manhandled the staff and caused injuries to the employees. The counter further states that these respondents were directed to show cause in writing within 48 hours. In response to the same, it is claimed that, the respondents had submitted their explanations and they denied the said allegations made against them.

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It is further stated in the counter that, these respondents were called for enquiry by notice dated 22.1.2005 to be conducted on 26.1.2005. The Enquiry Officer without following any procedure, on a random basis, enquired the respondents as well as the alleged witnesses on behalf of the management. It is further alleged in the counter that, the enquiry was completed within half an hour and on the very next day i.e., 27.1.2005, the Enquiry Officer submitted a report as if charges framed against them were proved. It is further averred in the counter affidavit of these respondents that, no charge was framed against the workmen and no particulars to that effect was furnished to the workmen. The enquiry was over within half an hour on one day.

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It is further stated in the counter affidavit that, these respondents are denying the various allegations made against these respondents by the petitioner in the affidavit filed in support of the writ petition.

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According to these respondents, the domestic enquiry was not conducted properly as no opportunity had been given to them, and it was over within an hour in one day. That itself shows that the Enquiry Officer has pre-determined, and concluded the enquiry without conducting the same in the manner known to law, and therefore, the entire enquiry and its report is vitiated.

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The counter further states that in view of these flaw on the part of the petitioner to have an enquiry and got a conclusion of the same within one day, industrial dispute was raised before the labour Court. On consideration of the merits of the issue, especially, the manner in which the enquiry was conducted and concluded, the labour Court has rightly concluded that the enquiry was not conducted in proper manner and there was violation of principles of natural justice as no due opportunities were given to the workers. Ultimately, the labour Court found that the enquiry and its report was impaired and therefore, the ID raised by these workers was allowed with a direction that these respondents 2 to 13 shall be reinstated with consequential service benefits.

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Dr.Fr.A.Xavier Arulraj, the learned senior counsel appearing for the petitioner would submit that it is the definite case of the petitioner that, on the said day these private respondents had been gathering in front of the gate of the petitioner's factory and they abused the management and

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infact, they literally prevented the other co-workers, who were about to enter into the factory premises to attend the work. Inspite of the attempt made by these erring workers, most of the other co-workers had managed to enter into the factory premises and they started attending their work. However, these workers had been continuing the onslaught by using filthy languages against the management and in fact, they prevented the entire ingress and egress of the factory premises by which the vehicle which was carrying raw materials to the factory was prevented outside and the vehicle taking finished product, which were in fact permitted to be moved out from the factory after paying the excise duty to the worth of Rs.21 lakhs and more, have been literally prevented by these workers. Therefore, the learned senior counsel would submit that the entire factory movement have come to a stand still since in the evening hours on the said day, the trouble makers, according to him, the workers, who are respondents herein, since had been in the onslaught of not only preventing the co-workers, who were coming out of the factory premises after working hours, but also started stone pelting, with the result, atleast two managerial persons of the factory got injured and immediately, they had been taken to hospital, where they had been treated.

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The learned senior counsel would also submit that only after the police team came to the spot on the complaint and SOS request of the petitioner / management, somewhat the petitioner was able to manage the situation by taking safely the remaining co-workers outside the factory. However these erring persons, i.e., the respondents herein had been continuously in the spot even for 2, 3 days, thereafter.

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The learned senior counsel would further submit that because of these actions, police complaint had been given by the injured persons of the petitioner / management. That apart, the petitioner / management had approached the competent civil court, where, after taking note of the gravity of the situation, an interim order of injunction restraining these respondents from interfering with the peaceful running of the factory was given and the said order of interim injunction was subsequently, made absolute after hearing both sides.

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The learned senior counsel would further state that, in view of such unlawful activities and unauthorised strike on the part of the respondents / workmen, the petitioner / management issued show cause notices seeking explanation from them. Since these workers had denied those charges, an enquiry was contemplated, where a law-man has been appointed as Enquiry Officer, who had, on notice to these respondents, conducted enquiry, where admittedly, these respondents had attended.

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Though four witnesses had been examined on the side of the petitioner and a chance was specifically given by the Enquiry Officer to the workers / respondents, they have not chosen to cross-examine those witnesses and only thereafter, the Enquiry Officer started examining the respondents / workers' evidences. Even though all these respondents had been present for the enquiry, only two out of them had deposed before the Enquiry Officer and others stated, they would adopt the statement given by these two people before the Enquiry Officer.

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Since the witnesses on both sides had been examined and no further witnesses or evidences were available to be examined and since it is a domestic enquiry, the Enquiry Officer concluded the enquiry in the late hours on the same day and thereafter, he filed a detailed report stating that the charges framed against these workers / respondents have been proved.

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The learned senior counsel would further state that, since the gravity of the charge is high as they indulged in illegal activity of causing injury to the managerial persons which were totally unlawful, the petitioner / management had no other option except to inflict the punishment of termination. Accordingly, all these respondents have been terminated. The learned senior counsel would further state that, without appreciating all these aspects, during the industrial dispute proceedings, the first respondent / labour Court, has simply traversed only the statement given on behalf of these respondents that, they were not given due opportunity during enquiry and they had not been permitted to cross-examine the witnesses examined on behalf of the management, had concluded that the enquiry was not conducted in consonance with the principle of natural justice and therefore, accordingly, the labour Court passed the impugned order, whereby, the termination orders were set aside and these respondents/workers were directed to be reinstated with consequential benefits.

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The learned senior counsel would further state that, it was only a domestic enquiry where due opportunities were given to all these workers and it is an admitted case of the respondents / workers that they have attended the enquiry on notice, and after having examined the witnesses on the side of the management, the respondents workers had been given the chance of cross examination, and in fact, initially, the Enquiry Officer had indicated them that, whether they want to have any employee as Assistant to defend themselves, which was negated by these workers, and only after completion of examination of the witnesses on the side of the management, the Enquiry Officer proceeded to examine the witnesses on behalf of the workers.

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However, only 2 out of the 12 employees had deposed before the Enquiry Officer, and others adopted the said deposition made by the said two workers. Since no other witness is available from either side, the Enquiry Officer concluded the enquiry.

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Therefore, the learned senior counsel would state that absolutely, there was no chance of any denial of opportunity to these workers and this aspect has not been considered and decided in a proper perspective by the labour court, which has infact, on the other hand, merely on the basis of the statement given by these workers in the claim petition, concluded that the enquiry was not properly conducted. Therefore, the learned senior counsel would state that the impugned award of the first respondent / labour Court, is liable to be interfered with.

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Per contra, the learned counsel appearing for respondents/workers would state that the enquiry was conducted in one day that too within less than one hour. If within a span of one hour, 4 witnesses on the side of the management had been examined, and 2 out of 12 persons on the side of workers also had been examined as recorded by the Enquiry Officer, it is highly unbelievable and therefore, the case of the petitioner / management cannot be accepted on the basis of this fact alone, as admittedly, the enquiry was concluded within one day.

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The learned counsel for the respondents would further state that all these workers are women folk and therefore, there had been no chance of they indulging in any activity of any vandalism of pelting of stones on the managerial staff and therefore, all these allegations made against these respondents / workers are totally unbelievable and untenable and unless and until, a full fledged complete domestic enquiry is conducted by examining the witnesses by giving a chance to each of the workers to depose herself and to cross-examine the witnesses concerned, these factors or allegations which have been made on the side of the management, cannot be decided.

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Therefore, the learned counsel appearing for the respondents would state that the labour Court has come to a correct conclusion that the enquiry was not conducted properly and the opportunity which were necessary to prove the innocence on the part of the respondents/workers, since had been denied to these workers, it was found by the labour Court that the enquiry was not conducted in consonance with the principles of natural justice. Therefore, the learned counsel for the respondent would state that, the said conclusion arrived at by the labour Court in the impugned award, is perfectly valid and requires no interference.

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I have considered the case of the petitioner as well as the contesting respondents and also the arguments advanced by the learned senior counsel appearing for the petitioner and the learned counsel appearing for the respondents.

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The learned Judge of the labour Court in the impugned award has stated that, according to Ex.R.14, the enquiry report dated 27.1.2005, all the 4 witnesses on behalf of the management were examined and on the same day itself, the petitioner was asked to cross-examine them without giving sufficient opportunities to them. Only on these basis, the learned Judge has concluded that, it is manifest that the enquiry officer was posthaste in concluding the enquiry and the Enquiry Officer should not have come to a conclusion, without giving due opportunities to the petitioner, which shows, the biasedness of the Enquiry Officer against the delinquents.

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Further, the first respondent / labour court in paragraph 13 of the impugned award has given the reason that, though on the side of the management, it was contended that the police complaint was filed against the petitioners i.e., the workers for the alleged assault made by them on the manager and the staff of the management side, the said complaint given to the police was not filed before the labour Court in support of the contention.

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Mainly on the basis of these two findings alone, the labour Court has come to a conclusion that the domestic enquiry was vitiated and accordingly, the termination orders were set aside and the impugned award of reinstatement of workers with backwages were given.

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In this regard, if we peruse the enquiry report, which states that, on behalf of the management, 4 witnesses were examined. Out of the 4, one Manivel and Poogundram are, according to the management, the persons, who sustained injuries because of the alleged unruly behaviour on the part of the workers. Further, Exs.A1 to A7 were marked on behalf of the management wherein, Exs.A3 and A4 are the certificate issued by the doctor / hospital to show that the said Manivel had taken treatment. Ex.A.5 is the copy of the complaint given to the police on 04.10.2004.

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Further, if we peruse the interim order of injunction granted by the civil court, in I.A.No.1426 of 2004 in O.S..No.428 of 2004 filed by the management, by order dated 10.11.2004, the said Court at paragraph 7 of the said order has stated as follows:

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“............. Apart from that, the materials stocked in the company is combustible one and if some other miscreants

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other than the employees are allowed to lay hands, it will endanger not only the employees of the factory but also neighbouring public. The petitioner has also filed documents no.7 and 8 O.P.D. slips to show one of the employee has been injured by the act of the respondents who attended the work on 1.10.2004. The petitioner has also preferred complaint before the concerned police station and also before the Superintendent of Police and these have been revealed by documents 5 and 6. So, all these documents go to show that the respondents/defendants are preventing the movement of men and materials into and out of the factory. The petitioner has made out a prima-facie case for granting interim injunction. The workmen, even if their strike be illegal, have a right to carry on peaceful picketing. They may do so without blocking the ingress and egress to the petitioner's factory.”

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The said civil court further at paragraph 8 of the said order referred to above, has also given the following, stating that atleast to some extent, the incident occurred on the particular day has been accepted by the workers. The relevant portion of paragraph 8 of the order is reproduced hereunder:

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“8. Though it was submitted that respondent have not resorted to any violence it is admitted in the counter in para 7 as follows:

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There is only one in incident narrated by the petitioner is damage to the lights of the compound wall for that too these respondents are not responsible.

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The respondents have admitted that there is a damage caused to the lights of the compound wall but shift their responsibilities to some other third parties. At para 6 of the counter the respondents have admitted as follows:

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Therefore, they sit in strike in front of the gate when the police came, the grievances were expressed and on the request of the police, the workers dispersed.”

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In the enquiry report dated 27.1.2005, the Enquiry Officer has given the following findings:

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“,uz;lhtJ rhl;rpahf kzpnty; tprhhpf;fg;gl;lhh;/ mth; Twpa tpsf;fk; tUkhW:

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ehd; tHf;fk;nghy; rk;gtj;jd;W (01/10/2004) fhiy 9/00 kzp mstpy; bjhHpw;rhiyf;F te;njd;/ vd; gzpf;fhd ,lj;jpy; ehd; brd;nwd;/ rhjhuzkhf bfkp!;l; $hdfpuhkdplk; brd;w nghJ ,d;W Vd; bjhHpyhsh;fs; Fiwthf gzpf;F te;Js;shh;fs; vdf; nfl;nld;/ mjw;F mth; rk;ge;jg;gl; ;l bjhHpyhspfs; 13 ngh; md;W gzpf;F tu kWf;fpd;wdh; vd;w fhuzj;ij Twpdhh;/ nkYk; khiyapy; tHf;fkhf gzp Koe;J ehd; bjhHpw;rhiyia tpl;L btspna bry;y Kad;wnghJ vd;ida [k; kw;w bjhHpyhsh;fisa[k; rk;ge;jg;gl;l bjhHpyhspfSk; mth;fSld; ,Ue;j btsp Ml;fSk; nrh;e;J v';fis btspapy; bry;yhky; jLj;J fjtpd; btsp jhH;g;ghis nghl;L tpl;lhh;fs;/ Mifahy; eh';fs; ,ut[ 10/30 kzp tiu fhj;jpUe;J. ntW tHpapy;yhky; kWgoa[k; vy;nyhUk; xd;W nrh;e;J btspapy; brd;nwhk;/ mg;nghJ rk;ge;jg;gl;l bjhHpyhspfSk; btsp Ml;fSk; v';fis jfhj thh;j;ijfshy; jpl;odhh;fs;/ nkYk; fU';fy;yhy; moj;jhh;fs;/ me;j jhf;Fjypy; vd; jiyapy; gyj;j fhak; Vw;gl;lJ/ mjd; gpwF ehd; me;j rkaj;jpy; fhiyapy; brd;W bfhz;oUe;j ,U rf;fu thfd gazpahd xUtiu ntz;o vd;id VjhtJ xU kUj;Jtkidf;F vLj;Jr;bry;Yk;go nfl;Lf;bfhz;nld;/ ehd; tz;oapy; Vwp cl;fhUtjw;F Kd; vd;id kWgoa[k; ,Gj;Jg;nghl;L moj;jhh;fs;/ Mifahy; vd; epidit ,Hf;Fk; epiyf;F MdJ vdf; Twpdhh;/ K:d;whtJ rhl;rpahf o/g{';Fd;wk; tprhhpf;fg;gl;lhh;/ mth; Twpa tpsf;fk; tUkhW: ehd; tHf;fk;nghy; rk;gtj;jd;W (01/10/2004) gzpf;F te;njd;/ ehd; vd; gzpia ghh;j;Jtpl;L gzp Koe;J khiy 5/30 kzp mstpy; btspapy; bry;y Kad;wnghJ vd;ida[k; kw;w bjhHpyhsh;fisa[k; rk;ge;jg;gl;l bjhHpyhspfs; kw;Wk; mth;fSld; ,Ue;j btsp Ml;fSk; nrh;e;J v';fis btspapy; bry;yhky; jLj;J fjit btspg;g[wk; jhHpl;ldh;/ nkYk;. md;W ,ut[ 10/30 kzp tiu fhj;jpUe;J ntW tHpapy;yhky; eh';fs; midtUk; kWgoa[k; btspapy; bry;y Kad;W btspna te;jt[ld; "mth;fis tplhjPh;fs;. gpoa[';fs; " vd rk;ge;jg;gl;l bjhHpyhspfSf;F cjtpahf ,Ue;j 1/jpnd bghd;idah. 2/unkcp; (tp/V/X) kw;Wk; rk;ge;jg;gl;l bjhHpyhspahd ,/Rfe;jp MfpnahUk; Tr;rypl;ldh;/ nkYk; jfhj thh;j;ijfshy; jpl;odhh;fs;/ v';fis fy;yhy; jhf;fpdhh;fs; ,jpy; midtUf;Fk; mog;gl;lJ/ Mdhy; mjpfkhf mog;gl;lth; vd; rf bjhHpyhspahd kzpnty; !;nlhh; fPg;gh; MFk;/ rk;gtj;jd;W ,ut[ 12/00 kzp mstpy; ehd; kaf;f epiyapy; ,Ue;j kzpntiy nghyp!; cjtpa[ld; tpy;ypaDhh; kUj;Jtkidf;F miHj;Jr;brd;nwd;/ mjd; gpwF ehd;. m';fpUe;J tPL brd;nwd;/ ,e;j rhl;rp mspj;j rhl;rpa';fspd; nghJ rk;ge;jg;gl;l bjhHpyhspfs; rphpj;Jf;bfhz;oUe;jdh;/ ////////////////////////////////////////////////// nkw;bfhz;L bjhHpyhsh;fs; jug;gpy; FWf;F tprhuizf;F mDkjpf;fg;gl;lJ/ Mdhy;. mij mth;fs; midtUk; Vw;f kWj;jdh;/ mjd; gpwF eph;thfj;jug;gpy; FWf;F tprhuizf;F mDkjpf;fg;gl;lJ/ Kjypy; ,/md;gurpaplk; FWf;F tprhuiz bra;ag;gl;lJ/ //////////////////////////////////////////////////// ,e;j tprhuizapy; ,U jug;g[ tpsf;f';fSfk; kw;Wk; FWf;F tprhuizfSk; Koe;Jtpl;lgoahy; ,t;tprhuizia ,j;Jld;

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Koj;Jf;bfhs;tbjd Kot[ bra;ag;gl;lJ/ nkYk; ,e;j tprhuiz Fwpg;g [ efiy midj;J rk;ge;jg;gl;l bjhHpyhspfSf;Fk; tH';Fk;go eph;thfj;jug;g[ gpujpepjpf;F mwpt[Wj;jg;gl;lJ/ ”

¶76

From the findings given by the Enquiry Officer as has been extracted above, atleast, we can prima facie come to a conclusion that something had happened on the particular day, where, some of the workers, including the contesting respondents herein, had been on strike. Two of the managerial staff had deposed before the Enquiry Officer that they have sustained injuries because of the respondents / workers.

¶77

The Doctor / Hospital certificate issued in this regard has been marked as Exs.A3 and A4. The copy of the police complaint also was marked as Ex.A.5. These factors, in fact, had also been taken into account by the civil court, while passing the order of injunction, as has been extracted above.

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It can also be found that these respondents / workers did attend the enquiry, and according to the Enquiry Officer, though chance of cross examination was given to them, they did not take the opportunity and utilise the same. Whereas it is the definite case of the respondents / workers that though some witnesses on the side of the management were examined, these workers had not been given the opportunity of cross examining them and if at all the Enquiry Officer wanted to give such opportunity to the workers, the enquiry should have been adjourned to some other day, then only these workers, either themselves or by engaging some assistants could have crossexamined those management witnesses.

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In this aspect, however, it was recorded by the Enquiry Officer that opportunity had been given to these workers and since they have not cross examined, they had been asked to produce their witnesses and only two out of 12 workers had deposed and others had adopted the said deposition of the said two workers.

¶80

These factual matrices recorded by the Enquiry Officer would go to show that the enquiry was conducted, witnesses on the side of the management had been examined and some of the workers also had deposed before the Enquiry Officer. But the only gray area is whether further / proper opportunity had been given to the workers to cross-examine the management witnesses and also to present the defence side witnesses. Therefore, if at all any infirmity is to be found out, it can only be in that area, where, the chance of cross examining the witnesses of the management was actually given to the workers or not, as claimed by the management side and reported by the Enquiry Officer, is a matter to be decided.

¶81

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¶82

Since admittedly, the enquiry was completed on the same day itself and it was specifically claimed by the respondents / workers that only for half an hour, the enquiry went on and thereafter, it was abruptly closed, probably, the first respondent / labour Court swayed by the said situation projected by the workers and therefore, accordingly, it came to the conclusion that the entire domestic enquiry was vitiated.

¶83

However, it is the claim of the management that though the enquiry was concluded within one day, and it went on in the late hours in the evening, as entire witnesses on the side of the management had been examined, and inspite of the opportunity, respondents / workers did not come forward to cross examine the witnesses and 2 out of 12 workers had deposed before the Enquiry Officer and the other workers adopted the said deposition of the two workers and no other witnesses were available from either side, the enquiry had to be completed, accordingly, it was completed on the same day.

¶84

It is the argument on the side of the management that merely because the enquiry was concluded on the same day, it cannot be presumed that due opportunities were not given to the workers.

¶85

If at all the labour Court had reasons to come to the conclusion that the opportunities said to have been given to the workers to cross examine the witnesses on the management side, was unbelievable, because enquiry was concluded within one day, the labour Court could have proceeded to give remedial measures to the workers by remitting the matter once again for a fresh domestic enquiry giving due opportunities to the workers.

¶86

However, the labour Court concluded, by giving a reason that the copy of the police complaint given by the management was not marked before the labour Court, and also the reason that, since enquiry was concluded on the same day, it cannot be construed that opportunities were given to the workers.

¶87

What basis the labour Court has come to the conclusion that the domestic enquiry was conducted in a biased manner, has not been spelt out in the impugned award.

¶88

This Court finds that, atleast two managerial persons got injured and documents were filed before the Enquiry Officer which were marked as Exs.A3 and A4. The copy of the police complaint was also marked as Ex.A5 on the side of the management. These documents are corroborated or substantiated by the oral witness adduced by two managerial persons, who in fact sustained injuries. Therefore, it cannot be easily brushed aside.

¶89

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¶90

Though on the side of the petitioner as well as the respondents, a number of cases were cited, inorder to support the respective propositions, one is against the impugned award and another is in favour of the impugned award, this Court is of the view that the propositions of those Judgments cited by the learned counsels need not be gone into, inview of the conclusion going to be reached by this Court in this order.

¶91

Assuming that proper opportunities were not given to these workers, only in the context that after examining the witnesses of the management, the workers had not been given further chance to cross-examine the said witnesses, by adjourning the matter to some other day, the enquiry cannot be fully vitiated and based on which, the benefit of reinstatement, in the opinion of this Court, ought not to have been awarded by the labour Court. Examination of witnesses on the side of the management, marking documents on the side of the management, had been completed, and if at all the workers had any grievance that they had not been given proper opportunities to cross-examine the witnesses of the management, and also further opportunities were not given to the workers to produce their witnesses for which no time was given to them, even assuming that these grievance of the workers have to be accepted, that would not make them eligible to get reinstatement, as there are some evidences, atleast prima facie available, in the hands of the management to show the fingers against the workers, who allegedly indulged in violence and vandalism.

¶92

Therefore, this Court is of the view that, the reasoning given by the labour Court to reach a conclusion of setting aside the order of termination with a direction of reinstatement with backwages to the workers, may not be justifiable, and therefore, the order impugned, is liable to be set aside.

¶93

In the result the following orders are passed in the writ petition.

¶94

(i)The impugned award of the first respondent / labour Court is set aside;

¶95

(ii) In view of the specific case on the part of the respondents / workers that they had been not given due opportunities to cross-examine the management witnesses and to project their witnesses to substantiate their cases, the matter is remitted to the management for conducting a de nova domestic enquiry;

¶96

(iii) Such de nova domestic enquiry shall be conducted by the petitioner / management by appointing a fresh Enquiry Officer, by supplying all materials available with the management to the respondents / workers in advance and after fixing date and days for conducting enquiry, where adequate opportunity shall be given to the respondents / workers.

¶97

(iv) The enquiry at any rate shall be commenced within four

¶98

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¶99

weeks from the date of receipt of copy of this order and shall be concluded within a period of three months from the date of such commencement;

¶100

(v) Based on such de nova domestic enquiry to be conducted as directed above, necessary action, depending upon the outcome of the domestic enquiry report, can be taken by the petitioner management.

¶101

With these directions, the writ petition is ordered. Consequently, connected miscellaneous petition is closed. No costs.

¶102

Sd/Asst.Registrar (CS II )

¶103

/true copy/
Sub Asst. Registrar
kua
To
The Labour Court,
Pondicherry
+ 1 cc to M/s.Sai Bharath and Ilan Advocate,SR.73518
Order in
W.P.No.14155 of 2010
VD(CO)
NR 08/11/2017

¶104

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M/S.Premier Distilleries (P) v. the Labour Court

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M/S.Premier Distilleries (P) v. the Labour Court

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