ORDER
H. Rangavittalachar, J.
1. Since these two writ petitions arise against the same award passed by the Labour Court, Gulbarga, in KID No. 96 of 1989, these two writ petitions are disposed of by this common order.
2. W.P. No. 44626 of 1995 is filed by Rajashree Cements challenging the award ordering for reinstatement of its earlier workman, one Naeem Pasha while the other writ petition has been filed by the workman against that portion of the award denying back wages and continuity of service while ordering for his reinstatement.
3. Facts will be referred to with reference to W.P. No. 44626 of 1995.
4. The workman Naeem Pasha was working as an 'Air-Condition Refrigeration Mechanic' in the petitioner's establishment. He was charged of having committed the following acts of misconduct i.e.,
(1) On 10-8-1987 at about 9.15 a.m., he unauthorisedly left the work spot and also incited other workers to abstain from work.
(2) That on the same day at about 12.15 p.m. he and other workers went to Siddhartha Bachelors Hostel, damaged the air-conditioners installed in the room besides damaging the T.V. set and furniture.
(3) That he failed to report to duty since 10-8-1987.
5. Accordingly, a charge-sheet was issued to him. The workman failed to submit any explanation to the charge-sheet. Thereafter, a notice of inquiry was issued notifying the workman that an inquiry would be conducted regarding the charges by a retired District Judge, one Mr. F.L.F. Alvares. The Inquiry Officer sent the enquiry notice, but the workman refused to receive the same. Hence, an ex parte enquiry was conducted and the workman was found guilty of all the three charges by the enquiry report dated 2/-6-1988. The management accepting the report, issued and show-cause notice dated 3-/-1989 proposing the punishment of dismissal. The said show-cause notice also was not responded by the workman by offering any explanation. By an order dated 2-8-1989, he was dismissed from service.
6. The workman raised an industrial dispute under Section 10(4-A) (Karnataka Amendment) of the Industrial Disputes Act, 1947, before the Labour Court, Gulbarga, in KID No. 96 of 1989 questioning the order of dismissal. In his claim statement it was contended that on 10-8-1987 a dead body of another workman of the factory was recovered from Gypsum Yard under mysterious circumstance and the atmosphere in the factory premises became tense. Some antisocial elements took advantage of the situation and indulged in damaging some of the properties of the factories which raised an apprehension in the minds of the workers about their safety. Hence, the workmen struck from the work and the factory was closed till 31-10-1987. The Chief Minister of Karnataka intervened to resolve the dispute, as a result, a settlement was arrived at between the workman and the management under the terms of which the management revoked the suspension order of ten workers, however reserving their right to hold an enquiry by an officer to be named by the Chief Minister. Since the said F.L.F. Alvares was not nominated by the Chief Minister, the inquiry conducted by him was without authority of law and his dismissal on the basis of the enquiry report of Alvares was bad in law. In the alternative, it was also contended that the departmental enquiry conducted was not fair and proper.
7. The Labour Court framed a preliminary issue as to 'whether the departmental enquiry conducted was fair and proper'; and held it was 'fair and proper' by its order dated 24-8-1993. Later, by its final award dated 31-8-1995, held that two charges viz., workman abruptly leaving the factory premises, and being unauthorisedly absent was held proved while one of the charges that the workman indulged in the act of damaging the air-conditioning by violent act was not proved. In exercise of powers under Section 11A of the Industrial Disputes Act, ordered for reinstatement but denied continuity of service and back wages.
8. Aggrieved by the said award, both the workman and the management have preferred these two writ petitions.
9. This matter was heard earlier and on the said occasion, the learned Single Judge who had heard these writ petitions, felt that the atmosphere in the factory was not congenial for the workman to be reinstated. Hence, in lieu of reinstatement ordered a lump sum compensation of Rs. 1,00,000/-to be paid in full and final settlement of all the claims the workman had against the management by his order dated 26-6-1997.
10. Both the workman and the management feeling aggrieved by the said order, filed writ appeals before the Division Bench of this Court in W.A. Nos. 4073, 4074, 5377 and 5897 of 1997. The Division Bench of this Court, by its order dated 9-10-2001, set aside the order of the learned Single Judge and has remitted the matter for fresh disposal according to law. Thus, the matter is again taken up for hearing.
11. Before me, Sri U.L. Bhat, learned Senior Counsel for the petitioner-management firstly submitted that the approach of the Labour Court in evaluating the evidence while finding that the workman was not guilty of the 2nd charge viz., 'that he damaged the air-conditioners installed in the rooms' is not in accordance with the well-accepted principles of evaluating evidence in departmental enquiries. According to the learned Counsel, the Labour Court failed to notice that the strict rules of the Indian Evidence Act has no application in the matter of enquiries either before the department or before the Labour Court. All that the Labour Court has to find is about the availability of some material on record from which any reasonable person could form an opinion regarding the commission or non-commission of the acts of misconduct. Learned Counsel read to me the relevant portion of the award of the Labour Court wherein the learned Judge has discarded the evidence of the witness of the management tendered before the departmental enquiry solely on the ground that the 'Presiding Officer had elicited certain answers by putting questions to the witness. Presiding Officer has no such power'. In support of the said contention, learned Counsel referred to the decision of the Supreme Court in Employers of Firestone Tyre and Rubber Company (Private) Limited v. The Workmen, : (1967)IILLJ714SC . It was his further submission that the uncontroverted evidence of the management before the departmental enquiry clearly pointed out to the guilt of workman of the misconduct charged. If this charge is also held to be proved, then it is difficult to say whether the Labour Court could have still exercised the discretion under Section 11A of the Act and ordered for reinstatement as has been done now inasmuch as the Labour Court proceeded to order reinstatement only because the said charge was not proved.
12. On the other hand, Sri Balakrishna Shastry appearing for the workman contended that the finding of the Labour Court 'that the departmental enquiry conducted was fair and proper', is not correct. According to him, as per the settlement arrived at between the workman and the management - Annexure-Q, the Enquiry Officer was to be appointed by the Chief Minister. In this case, the appointment was not made by the Chief Minister and the enquiry was conducted by a person who had no competence. Hence, the workman was right in not attending to the enquiry. He read to me Clause (2) of the terms of the settlement.
13. On merits, Sri Balakrishna Shastry supported the award and also further contended that once Labour Court held two charges as not proved and ordered for reinstatement, it could not have denied back wages.
14. In reply to this contention, Sri Bhat, learned Senior Counsel submitted that by proper reading of Clause (2) of the terms of settlement, Chief Minister was not given the power of appointing the Enquiry Officer. But, he was only to name the Enquiry Officer who should again be appointed by the management. The power of appointing an Enquiry Officer is always with the management. The name of Alvares, a retired District Judge was proposed by the Chief Minister. Learned Counsel referred to Ex. M. 31, dated 21-11-1987, under which the Chief Minister had suggested the name of Mr. Alvares. It is only in acceptance of the said letter, the management appointed Mr. Alvares as the Enquiry Officer. The Enquiry Officer was perfectly competent to enquire. On the contention of workman that he was denied opportunity, learned Counsel submitted that if the workman after receiving the notice, deliberately keeps out on the ground that the Enquiry Officer was not appointed properly, he cannot complain of denial of opportunity. It is a case of non-utilization of the opportunity.
15. These contentions have been dealt with by the Labour Court.
16. Regarding the competence of Mr. Alvares to function as an Enquiry Officer, the Labour Court has held that the Chief Minister was only to name the Enquiry Officer but was not given the power to appoint. The name of F.L.F. Alvares was suggested by the Chief Minister as per Ex. M. 31, dated 21-11-1987. Therefore, the appointment is not against the terms of the settlement and the Enquiry Officer was fully competent: I agree with the said reasoning.
17. It is an admitted fact that after the unrest of some of the labourers, there were serious disputes between some of the workers and the management in view of the incident of death of a worker within the factory premises, on account of which the Chief Minister of Karnataka intervened and a settlement between the workers including the workman involved in this writ petition and the management was entered into as per Annexure-Q. Clause (2) of the settlement is extracted for ready reference:
'It is agreed between the parties that, the enquiry on the charge-sheets given to these 10 workers will be held by an Enquiry Officer named by the Hon'ble Chief Minister of Karnataka. The Enquiry Officer will endeavour to complete enquiry within a period of 2 months and in case the enquiries are prolonged because of circumstances beyond the control of the Enquiry Officer, the other arrangements agreed will continue. During the period of enquiry the 10 workers referred to above will be paid full wages'.
A reading of the same clearly indicates that the role of the Chief Minister was only to suggest the name of the Enquiry Officer and 'not appoint' an Enquiry Officer, the appointment of which is always a managerial function. There is no denial that the name of Mr. Alvares was suggested by the Chief Minister on 21-11-1987 much before the enquiry started and accepting this suggestion the management has appointed Mr. Alvares as the Enquiry Officer. Therefore, Alvares was perfectly competent to enquire about the charges.
18. On the contention 'that the workman was denied reasonable opportunity to participate in the enquiry', Labour Court has held that the Enquiry Officer had issued notices by registered post informing the workman that he would conduct the enquiry vide Exs. M. 3 and M. 4. The workman has refused to receive this notice; which fact is also admitted by him during trial before Labour Court. Not merely this letter, according to the evidence of the workman, he similarly refused subsequent notices also. When the workman refused to receive the notice even after he was made aware of the charges by the Enquiry Officer vide Ex. M. 2, dated 18-8-1987, he cannot complain of denial of opportunity. It is a case of non-utilization of opportunity. The finding of the Labour Court on this point cannot also be faulted.
19. Similarly, on the contention that 'before imposing the punishment on the basis of the findings of the Enquiry Officer, the management did not issue any show-cause notice'. Labour Court has held 'that the management had issued a show-cause notice vide Ex. M. 9 along with the copies of the findings of the Enquiry Officer, the receipt of which the workman had not denied'. The facts stated by Labour Court on this point is not in dispute and on the facts stated, the Labour Court decision cannot be faulted.
20. About the merits of the award.--The Enquiry Officer had found the workman guilty of all the three charges. But, the Labour Court has found him guilty of charges 1 and 3 i.e., unauthorised absence and failure to report for duty. It is not shown to me why and how the finding of the Labour Court on these two charges calls for interference. Even otherwise, I do not find any reason to differ from the said finding as the same is based on appreciation of evidence. The findings of the Labour Court on these two charges is also not seriously disputed. But, what has been seriously contested is the finding on charge 2. It is on this point elaborate arguments were addressed by both the Counsels. As stated, the contention of Sri U.L. Bhat, learned Senior Counsel for management is that though there was unchallenged evidence of a witness, one Suresh Bhootra, the reasons of the Labour Court for rejecting his evidence is unknown to the well-accepted legal principles. Learned Counsel elaborated the arguments by submitting. Labour Court was not right in thinking that the Enquiry Officer in a disciplinary enquiry had no authority to put questions and elicit answers from the witnesses. Equally the reasoning that 'answers obtained by putting leading questions has to be excluded', has no basis. Per contra, Sri Balakrishna Shastry defended the finding of the Labour Court, by contending that it was fully within the competence of the Labour Court to reappraise the evidence and once a finding' is arrived at after reappraising the evidence, such a finding cannot be interfered by this Court in exercise of its powers under Article 226 of the Constitution.
21. The charge against the workman is--
'That on 10-8-1987 at about 12.15 p.m. he and other workers went to Siddhartha Bachelors Hostel, damaged the air-conditioners installed in the room besides damaging the T.V. set and furnitures'.
22. In order to prove this charge, the management has examined one Suresh Bhootra before the Enquiry Officer. The relevant portion of his evidence is extracted herein, omitting what is not required.
Q. Can you say how many air-conditioners were damaged?
A. What I actually saw was Naeem Pasha damaging one air-conditioner and breaking the window glasses. There were also other air-conditioners which were damaged at that time.
23. The Enquiry Officer has found him guilty of the charge on the basis of this evidence. But, the Labour Court rejects his evidence in toto on the following reasons;
(1) that he has not stated a single word in his evidence at the earlier stage that he saw the claimant damaging the air-conditioners and breaking the window glasses;
(2) that he has stated the facts regarding the damages actually caused by Naeem Pasha only when he was questioned by the Presiding Officer, it only shows that the Presiding Officer has given a hint to the said witness to give evidence about damages. If the question was not put to him, he would not have given such evidence. It is at the instance of the Presiding Officer that the witness Suresh Bhootra has given the evidence against the workman. Since no other evidence was available on record, the charge is held not proved.
This approach of the Labour Court is totally incorrect on the well-recognized legal principle.
24. A domestic Tribunal is in general composed of layman and the powers exercised by an Enquiry Officer though may be stated as quasi-judicial but they are not Courts, and while conducting the enquiry is not bound by rules of evidence; though rules of natural justice has to be complied, is now well-settled.
25. In Union of India v. T.R. Varma, : (1958)IILLJ259SC , on the procedural requirements of a domestic enquiry the Supreme Court has stated:
'Stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of .adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down, in the Indian Evidence Act for taking evidence was not strictly followed'.
(emphasis supplied)
26. On the power of Enquiry Officer during departmental enquiry to put questions and elicit answers from witnesses, this Court has held, in the case of Bharath Electronics Limited v. K. Kasi, 1987-II-LLJ-203 (Kar.), ILR 1987 Kar. 366, as follows:
'It is settled law that an enquiry authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long as the delinquent employee is permitted to cross-examine the witnesses after the enquiry authority questions the witnesses, the proceedings cannot be impeached as unfair'.
27. In Malchandani Electrical and Radio Industries Limited v. The Workmen, : (1975)ILLJ391SC , Supreme Court held:
'We do not think that the enquiry was vitiated because the Enquiry Officer put some questions to the said witnesses by way of clarification in the circumstances stated above'.
28. The answers elicited from witnesses by the Enquiry Officer cannot also be disregarded on the ground they were elicited by putting leading questions. In the words of Supreme Court in Employers of Fire -stone Tyre and Rubber Company's case referred supra, 'Too much legal-ism cannot be expected from a domestic enquiry'. Even in trials before regular Civil Courts and Criminal Courts, a party is entitled to ask leading questions unless objected to by the adversary with the permission of Court under Section 142 of the Indian Evidence Act which reads 'Leading questions must not, if objected to by the adverse party, be asked in examination-in-chief, except with the permission of the Court'.
29. Besides, as held by Supreme Court in State of Haryana and Anr. v. Rattan Singh, : (1982)ILLJ46SC , the evidence on record before an Enquiry Officer cannot be evaluated in the manner done in Civil and Criminal Courts. All that the Court insists is the availability of material from which a reasonable mind can arrive at a fair conclusion. This is what the Court has said:
'It is well-settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent man are permissible'.
30. The finding of the Labour Court on charge 2 therefore, cannot be sustained for the reasons stated above.
31. The Labour Court evidently has exercised the discretion under Section 11A of the Industrial Disputes Act possibly influenced by the fact that charge 2 is not proved while ordering for reinstatement and denying back wages.
32. Before the introduction of Section 11A of the Industrial Disputes Act, the Industrial Tribunal or the Labour Court could not have interfered with the imposition of the punishment which was essentially recognised as a managerial function unless the punishment amounted to victimization or unfair labour practice or mala fides. But, with the introduction of Section 11A, the Labour Court or the Tribunal has been given wide power even to interfere with the punishments imposed by the management to satisfy itself that the punishment imposed is not disproportionate to the gravity of the charge. I may here refer to the leading case of Workmen of Firestone Tyre and Rubber Company of India Private Limited v. The Management and Ors., : (1973)ILLJ278SC in which the Hon'ble Supreme Court has explained the scope of Section 11A in the following terms:
'Another change that has been effected by Section 11A is the power conferred on a Tribunal to alter the punishment imposed by an employer. If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. Under Section 11A, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the, workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11A'.
33. On the power of Labour Court to re-appreciate the evidence where it holds that the departmental enquiry conducted is fair and proper, the Court has held 'to reappraise the entire evidence for purposes of ascertaining as to whether the charges of misconduct is proved, if proved whether the punishment imposed by the management calls for modification or not. It is only when after reappraising the evidence in case the domestic enquiry is held fair and proper and finds that the charges are proved, the Tribunal or the Labour Court is given the discretion to satisfy itself from the materials on record and taking into consideration the various factors and come to a conclusion that the punishment imposed is or is not proportionate to the gravity of the charge.
34. Reverting to the facts of this case, since the finding of the Labour Court on charge 2 is set aside, and since the power is given to the Labour Court in the first instance for exercising the discretion under Section 11A, in my view, the matter has to go back to the file of the Labour Court to re-enquire about charge 2 against the workman and after it gives a finding one way or the other. It may take into consideration such finding, to satisfy itself whether the punishment of dismissal imposed is just and proper or calls for any modification and pass orders accordingly.
35. Accordingly, the following order is passed. The writ petitions are partly allowed. The order of the Labour Court ordering for reinstatement of the workman and its finding that Naeem Pasha is not guilty of the charge - 'that on the same day at about 12.15 p.m., he and other workers went to Siddhartha Bachelors Hostel, damaged the air-conditioners installed in the room besides damaging the T.V. set and furniture', is set aside while its finding in other respects is confirmed. The matter is remanded with a direction to re-enquire in respect of the above stated charge and pass suitable final orders in the light of what is stated above and in accordance with law.