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  • INDUSTRIAL DISPUTES ACT
  • S. 411-A of the Industrial Disputes Act. Section 11-A
  • S. 2-A(2) of the Industrial Disputes Act,
  • S. 11-A of the Industrial Disputes Act
  • S. 25-F of the Industrial Disputes Act
  • rule 17(b)
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Citation Codes
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citation codes
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  • INDUSTRIAL DISPUTES ACT
  • S. 411-A of the Industrial Disputes Act. Section 11-A
  • S. 2-A(2) of the Industrial Disputes Act,
  • S. 11-A of the Industrial Disputes Act
  • S. 25-F of the Industrial Disputes Act
  • rule 17(b)
Smart Summary

Structured Summary of the Opinion — Writ Petitions Nos. 2323 & 12610 of 1996

Factual and Procedural Background

Two writ petitions arose from the award dated 1 September 1995 in I.D. No. 83 of 1993 passed by the Second Additional Judge, Labour Court, Madras. W.P. No. 2323 of 1996 was filed by the management seeking a writ of certiorari to quash that award. W.P. No. 12610 of 1996 was filed by the workman seeking certiorari/mandamus to call for the award records insofar as back-wages and attendant benefits were concerned and to direct payment of back-wages from the date of termination until reinstatement.

Management's factual case (as stated in the opinion): the workman, employed as a cashier, was recorded as recognised on 12 May 1990; he was repeatedly irregular and absent without leave. He allegedly remained absent from 3 April 1990 without prior intimation; was called upon by letter dated 30 April 1990 for explanation; returned on 24 May 1990 and sought leave for the intervening period and was permitted to rejoin on condition of regularity. During January–March 1991 his attendance was very limited (recorded as 4, 6 and 5 days respectively). A letter dated 15 April 1991 called for explanation and directed him to join; he did not reply or join; the management issued an order of termination dated 29 April 1991 (termination effective 19 March 1991 as noted elsewhere in the record). The workman replied on 6 May 1991 claiming illness and treatment; management rejected those reasons by letter dated 17 June 1991 and finally rejected the request by letter dated 28 October 1991.

Workman's case (as stated in the opinion): he alleged severe illness prevented attendance, he sent a leave letter, and he contended that the management's letter dated 4 May 1991 terminating him on the ground of abandonment of employment with effect from 19 March 1991 was erroneous and not sustainable in law.

Procedurally, the dispute was brought before the Labour Court under S.2-A(2) of the Industrial Disputes Act after conciliation failed. During the proceedings the management applied under S.11-A (I.A. No. 892 of 1994) for permission to lead evidence; that application was allowed on 20 December 1994. The management led one witness and 10 exhibits; the workman gave evidence himself and marked 13 exhibits. The Labour Court awarded reinstatement without back-wages on 1 September 1995. The workman challenged denial of back-wages by W.P. No. 12610/1996; the management challenged the entire award by W.P. No. 2323/1996.

Legal Issues Presented

  1. Whether the Labour Court's award of reinstatement without back-wages is sustainable in light of findings that the workman had absented himself without leave and of the management's conduct in terminating service without holding domestic disciplinary proceedings.
  2. Whether the Labour Court erred in failing to consider and adjudicate upon evidence admitted under S.11-A of the Industrial Disputes Act (including fresh evidence adduced by the management after permission under S.11-A).
  3. Whether the workman is entitled to back-wages for the period between termination and reinstatement.

Arguments of the Parties

Management's Arguments

  • The Labour Court, having found unauthorised absence, erred in ordering reinstatement; the Court should have dismissed the industrial dispute against the workman rather than reinstating him.
  • Although the management terminated without initiating disciplinary proceedings, it obtained leave under S.11-A to lead evidence (I.A. No. 892 of 1994, allowed 20 December 1994) and did lead evidence proving misconduct; therefore the Labour Court's reliance on absence of disciplinary proceedings to order reinstatement was unsustainable.
  • The Labour Court failed to appreciate the scope and effect of S.11-A of the Industrial Disputes Act which permits the Tribunal to receive evidence to justify the termination.

Workman's Arguments

  • The management violated mandatory provisions under S.25-F of the Industrial Disputes Act by terminating the workman; such termination is void ab initio.
  • The Labour Court's reinstatement order should have been accompanied by an award of back-wages; denial of back-wages was improper.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Workmen of Firestone Tire and Rubber Company of India (P) Ltd. v. Management [1973 (1) L.L.N. 278] Scope of S.11-A: employer's right to adduce evidence before the Tribunal; interpretation of "materials on record" and limits on receiving "fresh evidence". The Court relied on the decision to explain that S.11-A does not deprive an employer of the right to adduce evidence before the Tribunal and that the Tribunal must consider materials on record (which may include evidence led before it). This supports the proposition that evidence led under S.11-A must be considered when justifying dismissal/termination.
Neeta Kaplish v. Presiding Officer, Labour Court [1999 (1) L.L.N. 7] Interpretation of S.11-A: the proviso's treatment of "material on record" and the distinction between defective domestic enquiry records and fresh evidence; if enquiry is found bad, management must lead fresh evidence. The Court relied on this authority to emphasize that when a domestic enquiry is held to be defective, its records may cease to be "material on record" for the purposes of S.11-A and the management must lead fresh evidence; failure to do so carries consequences. This supports the need for the Labour Court to scrutinize any fresh evidence led under S.11-A.
Government of Tamil Nadu v. K. Rajaram Appasamy [1997 (2) L.L.N. 997] Entitlement to back-wages where employee remained off duty for an extended period: limits on awarding full back-wages to an employee who wilfully did not report for duty for prolonged period. The Court cited this decision to show that prolonged unauthorised absence may justify denial or reduction of back-wages; it was used in argument and consideration of whether back-wages were appropriate in the circumstances of extended absence.

Court's Reasoning and Analysis

The court's analysis proceeded on the following lines, drawing from the record as described in the opinion:

  1. The court identified S.11-A of the Industrial Disputes Act as empowering a Tribunal to call upon the employer to justify the action taken and to permit the employer to show by fresh evidence that termination was proper. The court reiterated that when the employer avails the opportunity under S.11-A and adduces evidence, the validity of the employer's action must be scrutinized and adjudicated on the basis of that evidence (paragraphs 10 and 21 of the opinion).
  2. The court observed that, although the Labour Court recorded that the parties had led both oral and documentary evidence, the Labour Court failed to discuss or scrutinize that evidence before reaching its conclusion ordering reinstatement (paragraph 11). The opinion notes specifically that the Labour Court did not even mention that the management's petition under S.11-A had been filed and allowed and that evidence was led pursuant to that order.
  3. Because the S.11-A petition had been allowed and evidence was led by both parties, the court found it was the bounden duty of the Labour Court to examine and adjudicate upon such evidence. The Labour Court's failure to do so meant its award was defective: it treated the case as if no S.11-A petition had been filed and allowed (paragraph 11).
  4. Given the foregoing defect (failure to scrutinize and adjudicate on evidence properly before it), the court concluded that the award was liable to be quashed and the matter remitted to the Labour Court to be decided afresh on merits on the available materials (paragraphs 12 and 23). The opinion expressly directs the Labour Court to dispose of the matter within three months from production of the certified copy of the order, noting the workman's date of termination (19 March 1991) as a temporal reference for the procedure.
  5. The court therefore quashed the award of 1 September 1995 on the ground of procedural and analytical inadequacy (failure to consider evidence led under S.11-A) and remitted the dispute for fresh adjudication (paragraphs 12 and 13).

Holding and Implications

Holding: The impugned award dated 1 September 1995 in I.D. No. 83 of 1993 is quashed; W.P. No. 2323 of 1996 filed by the management is allowed; W.P. No. 12610 of 1996 filed by the workman is dismissed; and the matter is remitted to the Labour Court for fresh disposal on merits (paragraph 13).

Immediate consequences and directions:

  • The Labour Court is directed to decide the matter afresh on the available materials and on merits and is required to dispose of the case within three months from the date on which a certified copy of this order is produced before it (paragraph 12).
  • There shall be no order as to costs in view of the facts and circumstances of the case (paragraph 13).
  • Connected miscellaneous petitions (W.M.P. Nos. 3608 of 1996, 10989 of 1996 and 5154 of 2000) are closed (paragraph 13).

The opinion does not state that it sets any new legal precedent beyond applying established principles relating to S.11-A and the requirement that a Tribunal must consider evidence properly placed before it. The decision's practical effect is remedial and procedural—quashing the award and remitting for fresh adjudication—rather than laying down a novel legal rule.

    G.M.M Company, Ltd., Madras v. Labour Court (Second Additional Judge), Madras, And Another

    1. W.P No. 2323 of 1996 has been filed by the management praying for a writ of certiorari to call for the records pertaining to the award, dated 1 September, 1995, in I.D No. 83 of 1993 on the file of the second Additional Judge, Labour Court, Madras, and to quash the same.

    2. W.P No. 12610 of 1996 has been filed by the workman praying for a writ of certiorarified mandamus to call for the records relating to the award, dated 1 September, 1995 made in I.D No. 83 of 1993 passed by the Second Additional Judge, Labour Court, Madras, in so far as petitioner's back-wages and other attendant benefits are concerned and to direct the management to pay the back-wages and other attendant benefits to the petitioner from the date of termination of service till the date of reinstatement.

    3. Both the management and the workman have filed the above writ petitions against the order passed by the Second Additional Labour Court in I.D No. 83 of 1993. For the sake of convenience, the writ-petitioner in W.P No. 2323 of 1996 shall hereinafter referred to as the management and the petitioner in W.P No. 12610 of 1996 shall hereinafter referred to as workman and the Labour Court shall hereinafter referred to as Labour Court.

    4. The case of the management is that the workman was employed as a cashier in the accounts section. On 12 May, 1990 his services were recognized. The workman was very irregular and he used to remain absent for a long period without even applying for leave. Despite warning, he has not mended himself, that the workman remained absent from 3 April, 1990 without prior intimation and also without applying for leave. The management by letter, dated 30 April, 1990, called upon the workman to offer his explanation for his unauthorised absence, but he has not sent his explanation and he came to the office only on 24 May, 1990 and gave a letter applying leave for his past absence from 3 April, 1990 to 24 May, 1990, that the management has also permitted the workman to join duty on condition that he must be regular in future. During the month of January, February and March, 1991 the workman has attended the office only for 4 days, 6 days and 5 days respectively. The management has sent a letter, dated 15 April, 1991, calling upon the workman to furnish his explanation for his unauthorized absence and also directed him to join duty forthwith, but he has not chosen to give any reply nor joined duty. The management by their fetter, dated 29 April, 1991 terminated the workman from his service. The workman sent a letter, dated 6 May, 1991, alleging that he was not well and taking treatment, that the management sent a reply, dated 17 June, 1991, stating that the reasons mentioned in the letter, dated 6 May, 1991, are not acceptable. However, the management has sent a letter, dated 28 October, 1991, finally rejecting the request made by the workman.

    5. The case of the workman is that due to severe illness he could not attend the office and he sent a leave letter but the management surprisingly sent the letter, dated 4 May, 1991, erroneously terminating his service on the ground of abandonment of employment with effect from 19 March, 1991 which is not sustainable in law.

    6. The workman has approached the Labour Court under S. 2-A(2) of the Industrial Disputes Act, since the reconciliation between the management failed. During the pendency of the dispute, the management sought permission under S. 11-A of the Act to let in evidence to prove the misconduct committed by the workman in I.A No. 892 of 1994 and the Labour Court has allowed the petition on 20 December, 1994. The management examined one witness and marked 10 Exhibits on its side. The workman examined himself as a witness and marked 13 Exhibits. The Labour Court passed the award, dated 1 September, 1995, ordering reinstatement of the workman without back-wages. As against the denial of back-wages, the workman has filed the above W.P No. 12610 of 1996. Aggrieved by the entire award passed by the Labour Court, the management has come forward with the W.P No. 2323 of 1996.

    7. The learned counsel for the management canvassed before me that the Labour Court, having found that the workman has absented himself without leave or prior permission has erred in ordering reinstatement, the Labour Court having made up its mind for disallowing the wages for the period of absence as well as back-wages ought to have dismissed the I.D against the workman, the Labour Court erred in passing order of reinstatement on the sole ground that the management has terminated the services of the workman without initiating any disciplinary proceedings. The Labour Court failed to note the introduction of S. 11-A of the Industrial Disputes Act to facilitate the parties to let in evidence after obtaining permission by filing a petition. Though the management has passed the order of termination without conducting disciplinary proceedings, that the petition under S. 11-A of the Act in I.A No. 892 of 1994 filed by them was allowed on 20 December, 1994 and the management also let in evidence and proved misconduct committed by the workman and justified the order of termination as such the award of reinstatement passed by the Labour Court on the ground that no disciplinary proceedings were initiated by the management is unsustainable in law.

    8. The learned counsel for the workman has canvassed before me that the management in gross violation of the mandatory provisions under S. 25-F of the Industrial Disputes Act has terminated the services of the workman which is void ab initio, the Labour Court having ordered reinstatement ought not to have denied the back-wages.

    9. The learned counsel for the management relied on the following decisions in support of his case:

    (i) Workmen of Firestone Tire and Rubber Company of India (Private), Ltd. v. Management [1973 (1) L.L.N 278], wherein Paras. 43 and 40, at pages 295 to 297, it has been held thus:

    ‘43. We have already indicated our views regarding the scope of S. 11-A and held that the right of an employer to adduce such evidence before the Tribunal has not been taken away. Sri Deshmukh referred us to S. 23 of the Act prohibiting a workman from going on strike in the circumstances mentioned therein and further pointed out that if a strike is illegal, it cannot be lawful. Similarly, an illegal act of an employer in not holding a domestic enquiry cannot be made legal.

    46. We are not inclined to accept the above contention of Sri Deshmukh. The proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. The expression ‘materials on record’ occurring in the proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the “materials on record” in the proviso must be held to refer to materials on record before the Tribunal. They take in —

    (i) the evidence taken by the management at the enquiry and the proceedings of the enquiry; or

    (ii) the above evidence and in addition, any further evidence led before the Tribunal; or

    (iii) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workman contra.’

    The above items by and large should be considered to be the materials on record as specified in the proviso. We are not inclined to limit that expression as meaning only that materials that has been placed in a domestic enquiry. The proviso only confines the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment. From the proviso it is not certainly possible to come to the conclusion that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression “fresh evidence” has to be read in the context in which it appears namely, as distinguished from the expression ‘materials on record.’ If so read, the proviso does not present any difficulty at all.

    (ii) In Neeta Kaplish v. Presiding Officer, Labour Court [1999 (1) L.L.N 7], in Paras. 14 and 26, at pages 11 and 14 it was held as follows:

    ‘14. Provisions of the Industrial Disputes Act were thus amended on the recommendation of the International Labour Organisation and S. 11-A was introduced in the Act by the Parliament, wherein it was provided that the Tribunal had not only the power to set aside the order of dismissal and direct reinstatement of the workman, it had also the power to award lesser punishment. The proviso to S. 11 A, however, provided that the Tribunal would rely only on the material already on record and shall not take any fresh evidence.

    26. The records pertaining to the domestic enquiry would not constitute ‘fresh evidence’ as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute ‘material on record’ as contended by the counsel for the respondent, within the meaning of S. 11-A at the enquiry proceedings, on being found to be Dad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and, were, in fact, relied upon by the management for the limited purpose of showing at the preliminary state that the action taken against the appellant was just and proper and that full opportunity of hearing was given to her in consonance with the principles of natural justice. The contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the management ceased to be ‘material on record’ within the meaning of S. 11-A of the Act and the only course open to the management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the management has to suffer the consequences.’

    (iii) In Government of Tamil Nadu v. K. Rajaram Appasamy [1997 (2) L.L.N 997], in Para. 3, at page 998, it has been held thus:

    “These appeals by special leave arise from the order, dated May 14, 1996 passed by the Tamil Nadu Administrative Tribunal, Madras in O.A Nos. 2354, 2477 and 6673 of 1993. The admitted facts are that the respondent was working as a doctor. He proceeded on leave and made a representation on June 27, 1987 with regard to his posting. He did not report for duty for five years from May 1, 1982. A departmental enquiry came to be conducted against the respondent, under rule 17(b) of the Tamil Nadu Services (Discipline and Appeal) Rules. The competent authority removed him from service on the ground that the respondent was found to be unauthorisedly absent from duty for five years. The Tribunal in its impugned order set aside the order of his removal from service and directed to pay 50 per cent of the back-wages till the date of filing of the original application and full back-wages from the date of filing of the original applications till the date of reinstatement. This Court issued notice confined to the question of respondent's entitlement to back-wages. It would be obvious that the respondent did not chose to join the duty for five years. There is nothing on the part of the State Government which prevented the respondent from attending to his duties. Under these circumstances, the Tribunal is wholly wrong in its direction to the appellants to pay 50 per cent of the back-wages from the date of his absence till the date of filing of the original application and back-wages thereafter till his reinstatement. Accordingly the appeals are allowed and the direction to pay back-wages stands set aside. No costs”

    10. The above judgment relied on by the learned counsel appearing for the management speak about the scope of S. 411-A of the Industrial Disputes Act. Section 11-A empowers the Tribunal to call upon the management or the employer to justify the action taken against the workman and to show by fresh evidence that the termination or dismissal order was proper. In case the management did not let in any evidence by availing of the opportunity, it cannot raise any grouse at any subsequent stage. If the opportunity granted by the Labour Court is availed of and the evidence adduced by the management, the validity of the action taken by it has to be scrutinized and adjudicated upon on the basis of such fresh evidence.

    11. The Labour Court though mentioned both the parties have let in oral and documentary evidence failed to discuss the same before reaching its conclusion of the order of reinstatement. The Labour Court did not even whisper that the petition under S. 11-A of the Industrial Disputes Act has been filed by the management, which was allowed and consequently evidences were let in by the management, of course by the workman also. Though the Labour Court discussed some of the documents and come to the conclusion that the order of termination passed by the management with but holding any enquiry as if no petition under S. 11-A of the Act has been filed by the management. Once the petition under S. 11-A was allowed and evidences were let in by the parties, the bounden duty of the Labour Court is to scrutinize the same and adjudicate upon on the basis of such evidence. In this case, the Labour Court failed to scrutinize and adjudicate upon the evidence let in before it.

    12. Hence the award passed by the Labour Court in I.D No. 83 of 1993 is liable to be quashed and accordingly quashed and I remand the matter back to the Labour Court to decide the case afresh on the available materials, on merits. Having regard to the fact that the workman was terminated from the services on 19 March, 1991, I direct that the Labour Court shall dispose of the case within three months from the date on which certified copy of this order is produced before it.

    13. In the result, the impugned award, dated 1 September, 1995, passed, by the Labour Court in award No. 83 of 1993 is quashed and the W.P No. 12610 of 1996 filed by the workman is dismissed and the W.P No. 2323 of 1996 filed by the management is allowed and the matter is remitted back to the Labour Court for fresh disposal as indicated above. However, considering the facts and circumstances of the case, there shall be no order as to costs. Consequently connected W.M.P Nos. 3608 of 1996, 10989 of 1996 and 5154 of 2000 are closed.

    W.P No. 2323 of 1996 allowed and W.P No. 12610 of 1996 dismissed.

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    G.M.M Company, Ltd., Madras v. Labour Court (Second Additional Judge), Madras, And Another
    (Jan 18, 2002)