Madras High Court
Management Of Sri Ram Coffee Estate vs Presiding Officer, Labour Court And ... on 26 July, 2001
Equivalent citations: (2002)ILLJ220MAD
Author: D. Murugesan
Bench: D. Murugesan
JUDGMENT D. Murugesan, J.
1. The second respondent in the writ petition was employed as an ordinary worker in the writ-petitioner-management. A show-cause notice was issued to him on November 12, 1990 asking him to give explanation as to the complaint dated November 10, 1990 given by one S. Chinniah, Superintendent of the writ-petitioner-management. In the said complaint, the said Chinniah has stated that the second respondent abused him in filthy language and also threatened him with assault. On November 15, 1990 the second respondent submitted his explanation giving a different story by stating that on November 1, 1990 at 10.30 A.M. when he and other workers were drinking coffee, the said Chinniah used certain vulgar language against the second respondent as he normally used to do so with the second respondent and on hearing such use of vulgar language, the other workers laughed at him and this incident created much anger to the said Chinniah and thereafter the said Chinniah also scolded the second respondent and therefore he has denied the charge levelled against him.
2. Not satisfied with the explanation submitted by the 2nd respondent, a charge memo was issued on December 9, 1990. An enquiry was conducted and in the enquiry, charges were held to be proved. Based upon the enquiry report, second show-cause notice was issued on December 27, 1990 proposing the punishment of dismissal. The second respondent submitted his explanation on December 29, 1990. Not satisfied with the explanation, the order of dismissal was passed on February 1, 1991. The second respondent raised an individual dispute which ended in failure. The dispute was adjudicated in ID. No. 231 of 1992. The Labour Court by award, dated March 21, 1984, set aside the order of dismissal and directed reinstatement of the second petitioner with back wages on the ground that the writ-petitioner-management has not established the charges levelled against the second respondent beyond doubt. It is against the said award, present writ petition has been filed by the petitioner-management.
3. Sri S. Ravindran, learned counsel for the petitioner-management submitted that the award of the Labour Court is perverse and the findings of the Labour Court based only on assumption and presumption. The Labour Court has also given extraneous reasons to reject, the evidence of the witnesses examined on the side of the petitioner-management. The Labour Court did not give any reason to reject the findings of the enquiry officer. The learned counsel for the petitioner-management submitted that one (sic) Ganesan and David were examined on the side of the management. Their statements have been totally rejected by the Labour Court on the ground that their names had not been mentioned in the complaint given by complainant Chinniah on October 10, 1990. Further there are certain discrepancies in the statement of Chinniah and the statements of David and Ganesan. According to the learned counsel, strict rule of evidence is not applicable to the domestic enquiry. Admittedly the incident has been spoken to before the enquiry officer by the said Chinniah who has been examined as M.W. 1. His evidence has corroborated the statement of M.W. 2 and M. W. 3 David arid Ganesan. Even though their names were not found in the complaint, however their names have been referred to by Chinniah in his evidence during the course of his cross examination. The Labour Court failed to appreciate the evidence of the said David and Ganesan who have spoken to about the occurrence. The learned counsel would further submit that the incident as spoken to by M. Ws. 1 to 3 have been disbelieved on the assumption that the said incident might not have occurred as spoken to by them. There is no evidence to draw such assumption and presumption before the Labour Court. In the absence of the same, the findings of the Labour Court that the incident ought not to have been occurred as spoken to by Chinniah M.W. 1 cannot be sustained. The learned counsel further submitted that the award setting aside the order of dismissal is not on the basis of rule of evidence prima facie the management has satisfied the Labour Court as to the occurrence and that itself is sufficient to sustain the order of dismissal. Further the learned counsel submitted that it is not the case of the second respondent in denying the incident in toto and on the other hand, the second respondent while admitting the incident, has given a different story, viz., the said Chinniah used to say certain vulgar language against the second respondent and on October 10, 1990 also the said Chinniah used vulgar language against the second respondent and on hearing the same, the other workers laughed at the said Chinniah which infuriated the said Chinniah to scold the second respondent. When such a defence is taken by the second respondent, the burden shifts on the second respondent to establish his case. Admittedly, the second respondent had spoken to about the presence of two workers at the time of occurrence and he has not examined those workers. Therefore the finding of the Labour Court is perverse. In this connection the learned counsel for the petitioner-management would rely upon the judgment of the Supreme Court reported in Orissa Mining Corporation v. Ananda Chandra Prusty . Therefore the learned counsel submitted that since the finding of the Labour Court is only based on assumption and presumption, the finding of the Labour Court is perverse.
4. On the other hand, the learned counsel for the second respondent submitted that the Labour Court after appreciating the evidence on record has come to the conclusion that the charge levelled against the second respondent has not been established beyond doubt and this Court will not reappreciate the said evidence sitting under Article 226 of the Constitution of India. Therefore, the learned counsel for the second respondent submitted that where once the Labour Court came to the conclusion on appreciation of the evidence that the charge levelled against the second respondent has not been proved, it cannot be said that the award of the Labour Court is perverse. It is not the case of any absence of evidence on the side of the second respondent and the second respondent examined himself and has deposed specifically denying the charges. Therefore the learned counsel submitted that since the award of the Labour Court was based upon the materials available on record the same cannot be assailed.
5. The basic contention of the learned counsel for the petitioner-management is that the Labour Court had passed the award only on assumption and presumption. In fact the findings of the Labour Court can be interfered with by this Court when the award of the Labour Court is found to be perverse. No reason has been given by the Labour Court to arrive at such a conclusion. According to the petitioner-management, the second respondent used filthy language against the Superintendent Chinniah on October 10, 1990 at 10.30 AM. and also threatened him with assault. To sustain the said complaint, he examined himself as M.W. 1 and has also examined one David and Ganesan as M.Ws. 2 and 3. Both the two witnesses have also deposed about the occurrence as alleged by the said Chinniah. Their statements have been discarded by the Labour Court. In the cross-examination nothing has been elicited from the two witnesses of any motive against the second respondent so that they can deposed against him before the enquiry officer. When the statement of witnesses before the enquiry officer are being considered it cannot be construed that strict rule of evidence should be followed. If the management prima facie satisfies the Court that the incident had taken place through the witnesses unless there is strong reasons to disbelieve those statements, the statement of witnesses examined on the side of the management cannot be ignored in the light manner. The reason of the Labour Court for not accepting their statement is that their names have not been mentioned in the complaint and as such the incident could not have been occurred as alleged by the witnesses. A reading of the statements of the three witnesses would indicate that on October 10, 1990 the second respondent has used filthy language against the complainant and threatened him with assault. In a domestic enquiry such evidence would be sufficient for the management to come to a conclusion that charge against the delinquent was held to be proved. It is to be seen that the Labour Court has also held that the enquiry was conducted in a fair and proper manner. However the Labour Court has proceeded on the basis that the findings of the enquiry officer is biased. I do not find any sufficient reason given by the Labour Court to hold that the findings of the enquiry officer is perverse. In the absence of any reason the findings of the Labour Court would be called as perverse. The submission of the learned counsel for the second respondent is that when there is no mention about the presence of the two witnesses, viz., David and Ganesan in the complaint, their evidence cannot be taken into consideration. However both the said witnesses have spoken to about the occurrence. Nothing has been elicited in the cross-examination as to the motive for deposing false against the second respondent and in such circumstances, I do not find any acceptable reason to reject their statement as has been held by the Labour Court. The Labour Court rejected the statements of the witnesses only on assumption and presumption. Therefore such a finding based upon assumption and presumption, cannot be sustained. Therefore, the submission of the learned counsel for the second respondent that the Labour Court has rightly rejected the evidence of the witnesses cannot be accepted. It is also to be seen that the second respondent had a different stand in his explanation. The Apex Court in the decision (supra) has held that the burden of proof depends upon the nature of explanation and the nature of charge. On facts, the Supreme Court has held that the burden of proof shifted on the delinquent. Once the second respondent has taken a different stand as to the manner in which the incident occurred, the burden of proof shift on to the second respondent to that extent. On facts the second respondent has not discharged the burden of his case as to the manner in which the incident is said to have taken place. On the contrary the Labour Court has proceeded only on the basis of assumption and presumption. In my considered view, such findings of the Labour Court cannot be accepted. However, it is stated by the learned counsel for the writ-petitioner-management, that pending the writ petition, the second respondent has been reinstated. In view of the changed circumstance, as to what directions could be granted in this writ petition is now to be considered. The Supreme Court in the judgment reported in Senapathy Whiteley Ltd. v. Karadi Gowda and Anr. 1999 SCC (L&S) 1224 : 2000-I-LLJ-273 has held that it is well settled law that the powers of the Labour Court under Section 11-A of the Industrial Disputes Act, 1947 are wide enough to convert an order of dismissal into one of lesser punishment and it should be open to the High Court in justifiable cases to modify the order of the Labour Court. In view of the above discussion, I hold that the findings of the Labour Court in so far as the payment of back wages to the second respondent has to be modified to the effect that the second respondent is not entitled to back wages for the period from February 1, 1991 to March 21, 1994 since the second respondent has abused the Superintendent in filthy language which charge cannot be viewed lightly. Since the second respondent is alleged to have used filthy language against the Superintendent and also threatened him with assault, instead imposing punishment of dismissal, a direction for reinstatement without back wages would be sufficient to meet the ends of justice as the same would be proportionate to the charges proved against the second respondent. Accordingly this writ petition is partly allowed and the award of the Labour Court in so far as directing back wages to the second respondent from February 1, 1991 till March 21, 1994 alone is set aside. No costs. Consequently, W.M.P. No. 28048 of 1994 is closed.