ORDER
V. Kanagaraj, J.
1. This writ petition has been filed praying to issue' a Writ of Certiorari calling for the records of the first respondent and quash the order dated February 7, 1997 made in I.D. No. 77 of 1992.
2. Heard the learned counsel for both and perused the materials placed on records.
3. In the affidavit filed in support of this writ petition, the petitioner Bank would submit that the Guindy Branch of the petitioner Bank opened an extension counter in the Defence Officers Training School at St. Thomas Mount and the said extension counter used to work on all Mondays, Wednesdays and Fridays between 12 noon and 2 p.m.; that the staff of the Guindy Branch would be deployed to the extension counter for attending to the transactions; when once the transactions are over, they would return to the branch and account for the transactions of the day; that the second respondent was working as a Cashier in the Guindy Branch and he also used to go to the above extension counter.
4. The petitioner Bank would further submit that it came to the knowledge of the petitioner Bank that between October 26, 1987 and February 3, 1988, the second respondent while working at the extension counter, in respect of four transactions, had received the cash, acknowledged the remittance in the counterfoil and intentionally omitted to put the transactions through the cash scroll, failed to account for the same in the books of account of the branch and appropriated the amount for himself; that on April 9, 1988, a charge sheet was issued to the second respondent for the above fraudulent acts; that subsequently, it came to light that in another transaction on November 4, 1987 when the second respondent was working as a cashier in the O.T.S. Extension Counter, he had received a sum of Rs. 1,800 which he failed to bring into the accounts of the Bank and appropriated the amount for himself; that for this, another charge sheet dated May 14, 1988 was issued to the second respondent; that as the explanation offered by the second respondent to the two charge sheets was not satisfactory, he was asked to appear for an enquiry.
5. The further case of the petitioner Bank is that the enquiry against the second respondent was first posted on August 22, 1988 when the second respondent represented that he was going to be defended by the SBI Staff Union and he should be given time to make arrangements for the same; that the next sitting was fixed on August 29, 1988 and on that day, the second respondent was furnished with the copies of documents to be relied on in support of the charges; that the second respondent pleaded with the enquiry officer that as he was furnished with the documents only on that day, the enquiry should be adjourned to another date and that the enquiry was adjourned to September 12, 1988; that on September 12, 1988, the second respondent informed the enquiry officer that the Union representative was not available to defend him in the enquiry and wanted permission to engage a lawyer; that his request to engage a lawyer was turned down and thereafter, the second respondent agreed to carry on with the enquiry by himself; then the Scientific Office Assistant and the document expert of the Forensic Science Department, viz., M. Kasi was examined; that after his chief examination was over when the second respondent was asked to cross-examine the witness, he stated that at present he is not cross-examining PW 1 M. Kasi; then the second respondent represented to the enquiry officer that he should be given a week's time to prepare himself for cross- examination of M. Kasi; that accordingly, the enquiry was adjourned to September 19, 1988.
6. The further averments of the petitioner are that on September 19, 1988, the second respondent once again asked for the assistance of a lawyer, when the enquiry officer pointed out to the second respondent that his request to engage a lawyer has already been declined, and therefore, he should get on with the enquiry; that the second respondent expressed his inability to examine the witness and stated that he was withdrawing from the enquiry; that when the enquiry was posted on September 26, 1988, the second respondent once again reiterated his request for the assistance of a lawyer which had already been turned down by the disciplinary authority; that the enquiry was then posted on October 3, 1988, when the second respondent did not turn up and hence the enquiry was posted on October 17, 1988 on which date also he did not appear; that thereafter, R. Jayaram was examined; that the enquiry was then adjourned to October 31, 1988 when D. Mohanan Pillai was examined, on November 7, 1988 U. Thoppo was examined, on November 14, 1988 S. Chandrasekaran, Cash Officer of Guindy Branch was examined, on February 6, 1989 J. Damodaran, Officer of the Guindy Branch, on March 20, 1989 C.J. Paul were examined; that the enquiry continued on June 2, 1989 and the second respondent was present and finally one more opportunity was given on June 26, 1989 to go through the proceedings for making submissions; that the second respondent was persisting in his request for lawyer's assistance and as his request could not be acceded to, the enquiry was closed.
7. The further case of the petitioner Bank is that on November 6, 1989, the enquiry officer gave his report holding that the second respondent was guilty of the charges and the second show-cause notice dated December 2, 1989 proposing punishment of dismissal was issued to the second respondent, for which, he gave reply on January 22, 1990 and on March 14, 1990, orders were passed dismissing the second respondent from service, challenging which, the second respondent filed I. D. No. 77 of 1992 before the learned Presiding Officer, Industrial Tribunal, Madras, who, in consideration of the pleadings by the parties and on perusal of the oral and documentary evidence placed before him, has passed an order holding that the enquiry findings are vitiated, aggrieved against which, this writ petition has been filed for the relief extracted supra.
8. In the counter affidavit filed by the second respondent/employee, besides generally denying the averments made in the writ petition, it would specifically be submitted that the second respondent did not receive the cash in respect of transactions nor acknowledged the remittance in the counterfoils and the signatures found in the counterfoils are not his signatures and they were forged, and therefore, he did not appropriate any amount; that when the management examined a forensic expert, it requires a technical knowledge to cross-examine the expert and hence he prayed for permission to engage a lawyer; that since the enquiry officer turned down his request, he expressed his inability to cross-examine the witnesses; that the enquiry was not fair and proper and therefore it should be decided as a preliminary issue; that since he was absent during the examination of witnesses, he should be given an opportunity to cross-examine the witnesses; the first respondent Presiding Officer held that since the inquiry was conducted ex parte, it would be only fair and proper for examining the witnesses afresh before the Tribunal; that the second respondent was present during the examination of P. Ws. 1,3,5 and 6, but could not cross-examine the witnesses for want of proper legal assistance; that he was not furnished with the copies of deposition; that since he was denied a reasonable opportunity to cross-examine the witnesses and put forth his defence, it amounts to denial of fair and proper opportunity, and therefore, he should be heard afresh before the Tribunal; that the first respondent Presiding Officer, after careful consideration of the entire arguments and records, held that the enquiry was held in the absence of the second respondent herein and he should be given an opportunity to cross-examine the witnesses and further held that the enquiry was vitiated. On such averments, the second respondent/ employee would seek to dismiss this petition with costs.
9. During arguments, the learned counsel appearing on behalf of the petitioner would submit that there are two points which are relevant for consideration: (i) whether the enquiry is fair and proper and (ii) whether the Labour Court can permit the management to lead evidence, if the opposite party is not cooperating with the enquiry proceeding in spite of adequate opportunity being afforded. At this juncture, the learned counsel would cite a judgment in : (1998)2SCC400 according to which when the opposite party is granted adequate opportunity and the petitioner does not make use of the same, the enquiry proceeding does not get vitiated and the Honourable Supreme Court says that only when the hearing is not fair and proper the entire proceeding goes.
10. The learned counsel wouid also cite yet another judgment in Madura Coats Ltd. v. Presiding Officer, Labour Court (Mad) wherein it is held at pp. 1204, 1205:
'48. ....... It is not as if the management had terminated the services of the workmen without holding an enquiry for unauthorised absence in terms of the Standing Order. The management had followed the procedure prescribed as well as followed the principles of natural justice and only tnereatter it imposed the punishment of dismissal. It may be that the proceedings may be exparte, but on that score, it cannot be said that the procedure adopted is in violation of principles of natural justice. Ex parte procedure is also provided for and it is a valid procedure and such an ex parte proceeding the management had been compelled to resort by the very conduct of the workmen. Therefore, while setting aside the findings of the Labour Court, the High Court held that the management had followed the procedure prescribed and while following the principles of natural justice, imposed the punishment of dismissal.
51 In the present case, the workmen have totally ignored their responsibility and duty and ignored the very existence of the management and employment and have kept themselves away for few months. Their sending two telegrams without address and a letter through their advocate without medical certificate had been rightly rejected for valid reasons and the reason which prevailed with or assigned by the management cannot be held to be capricious nor it is arbitrary.'
11. Citing the above judgments, the learned counsel would clarify that on June 22, 1988 the enquiry was fixed and it got adjourned to September 12, 1998 and since the respondent wanted to engage a lawyer it got rejected on ground that the enquiry officer was not a legally trained person and thereafter for seven consecutive hearings the respondent was absent and ultimately he appeared on March 22, 1989 when he was given one last chance and one more opportunity was granted, on June 26, 1989 and even on that day since the respondent did not proceed with the enquiry the Management was left with no choice but to carry on with the enquiry and therefore, there is nothing wrong on the part of the Management to have passed the order ex parte.
12. At this juncture, the learned counsel would cite yet another judgment in 2001 (3) LLN 890, wherein a Division Bench of the Allahabad High Court in a case where the petitioner chose not to participate in the enquiry despite service of notice, the services of the petitioner were terminated and the petitioner challenged the same on grounds of violation of the principles of natural justice wherein the High Court held that the petitioner having allowed the enquiry to proceed ex parte, cannot now take shelter of violation of principles of natural justice.
13. On the contrary, the learned counsel appearing on behalf of the second respondent, adhering to the facts of the case, as narrated by him, would submit that the Labour Court having assessed the facts pleaded by parties and framing the issue in a proper manner, allowed the parties to record their evidence and in total consideration of the facts and circumstances of the case, would find that the enquiry was ex parte that it is a fit case wherein the workman be given a fair opportunity to cross-examine the witnesses since he was not afforded with the required opportunity for cross-examining the witnesses and successively he was compelled to do the same in a hurried manner to suit the convenience of the management as a result of which, the evidence recorded started accumulating. Moreover the workman was not given the permission to engage a lawyer to assist him and under such inevitable circumstances, the workman was caught in between the two horns of the dilemma and since he was facing a very serious charge, which would warrant a dismissal from service, the opportunity to be provided for the workman is much more in the instant case. Therefore, on an overall consideration of all the facts and circumstances and the position of law on the subject, the Labour Court held that though the enquiry proceeding was fair and proper, the finding being ex parte, has to be held vitiated.
14. The learned counsel for the petitioner would cite a judgment in support of his arguments in Management of Engine Valves Ltd. v. Presiding Officer, Industrial Tribunal , wherein it has been held by the Division Bench of the Madras High Court that the finding recorded on a preliminary issue does not set aside the order of dismissal and that it only records that a fair and proper opportunity has not been afforded to the workman and therefore, the management has to prove the charges by adducing additional evidence,
15. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that it is a case of dismissal of the workman from service by the Management. The Labour Court, though held that the enquiry proceeding was fair and proper, still, considering the manner in which the subject was decided ex parte, has held that it is not proper on the part of the enquiry officer to have awarded the punishment of dismissal from service ex parte without hearing the workman. Therefore, on the part of the petitioner herein, who is the Management, it is argued that once the enquiry proceedings are held fair and proper, just for the reason that the workman did not deliberately participate in the enquiry, no leniency should have been shown on the part of Labour Court and the only decision that could be arrived at based on the available materials is the punishment and for the delinquencies, the punishment of removal from service was rightly resorted to and therefore the Labour Court should not have interfered with the decision of the Management.
16. On the contrary, on the part of the learned counsel appearing on behalf of the second respondent, it would be argued to the effect that the very conclusion arrived at by the Labour Court to the effect that the enquiry proceeding was fair and proper was not correct in the sense that all the rights which the workman was entitled, having been denied in this case, particularly in the supply of material documents and for the assistance of a lawyer and fixing the enquiry dates in quick succession thus without permitting him to get himself equipped with the necessary details to face the enquiry as a result of which, in spite of himself appearing before the authorities concerned and requesting for an adjournment on an occasion in the beginning of the enquiry seeking for the engaging of a lawyer which has been denied by the Management, the workman was not in a position to cope with the enquiry proceeding and the later absence was only under inevitable circumstances and not in defiance of the opportunity and therefore it is not a case of such nature that could be taken in the sense that in spite of the opportunities being afforded, the workman did not make use of it to his advantage and therefore it is a case of inadequate opportunity in violation of the principles of natural justice.
17. On an overall consideration of the facts and circumstances of the case and the manner in which the enquiry was commenced, continued and held in quick successions, the denial of engaging a lawyer for assisting the workman and not granting the required adjournments for getting ready for the enquiry, it could only be concluded that only under inevitable circumstances, the worker was not able to cope with and it was not a deliberate act of not making use of the opportunities afforded on the part of the workman, particularly when the workman was facing a charge so serious about, which would even warrant dismissal from service, a fair opportunity afforded for the workman to engage his counsel to defend him fairly with due opportunity to cross-examine those witnesses, who have been examined in chief, even at the last moment, would have served the purpose satisfactorily and the only reason that the Enquiry Officer is not a legally trained personality, cannot altogether pave way for rejecting the request of the workman to engage a lawyer particularly when it is not proved that the workman is so well-versed with such knowledge so as to defend himself doing all the cross-examination, which requires certain amount of legal knowledge. Therefore, the workman cannot be expected to know all the implications of law and only puzzled. Under such circumstances, the second respondent/workman was not in a position to cope with the enquiry proceedings, doing the cross-examination of those witnesses examined in chief then and there, which cannot be termed as a deliberate act perpetrated on the part of the workman in not coping with the enquiry proceeding held by the Enquiry Officer. Therefore, as it has been rightly concluded on the part of the Labour Court that it is a fit case in which the petitioner shall be given an opportunity for defending himself effectively being permitted to cross-examine all the witnesses, preferably engaging a lawyer to assist him legally and therefore this Court is not in a position to accept the contentions of the petitioner Management to the effect that it was deliberate defiance to participate in the enquiry proceeding by the workman and hence this Court is not inclined to cause interference into the decision of the Labour Court and hence the following order:
In result,
(i) the above writ petition does not merit acceptance and becomes only liable to be dismissed and is dismissed accordingly.
(ii) The order dated February 7, 1997 made in I.D. No. 77 of 1992 by the first respondent is hereby confirmed.
18. However, in the circumstances of the case, there shall be no order as to costs. Consequently, W.M.P. No. 24322 of 1997 is also dismissed.