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.