Madras High Court
N.M. Balasubramaniam And Anr. vs The Management Of K. Singaram Pillai Bus ... on 19 June, 1992
Equivalent citations: (1993)1MLJ81
ORDER K.M. Natarajan, J.
1. This writ petition is filed by the employees of the first respondent/Management challenging the award passed by the second respondent and praying for the issuance of a writ of certiorari calling for the records relating to the award dated 4.11.1978 and quashing the same in so far as it fails to grant the normal relief of reinstatement with full back wages and continuity of service, but only grants the relief of payment of compensation to the petitioners.
2. The brief facts which are necessary for the disposal of the writ petition can be stated as follows : - Both the petitioners were employed as conductors in the respondent/transport business. The first petitioner has put in 5 years of service and the 2nd respondent has put in 10 years of service. A charge-memo dated 31.8.1976 was issued to the first petitioner by the management, namely, the first respondent herein, to the effect that he did not attend to his duties on the evening of 19.8.1976 and 20.8.1976, 2.1.8.1976,22.8.1976 and 23.8.1976 and again on 29.8.1976, 30.8.1976 and 31.8.1976. The first petitioner submitted an explanation to the effect that he attended duty but he was not allotted any work. Another memo was issued to the effect that he did not attend duties on 1.9.1976, 2.9.1976 and from 5.9.1976 to 9.9.1976 to which also he sent a same reply. Yet another memo was issued alleging that he was absent from 10.9.1976 to 30.9.1976. Thereupon a domestic enquiry was ordered. Based on the finding of the Enquiry Officer, he was discharged from service. The dispute was referred for adjudication by the Government, along with the second petitioner's case of non-employment, in G.O. Rt. No. 2188, dated 10.10.1977.
3. As far as the second petitioner is concerned, he filed a criminal complaint alleging that the proprietor of the first respondent beat him and took away Rs. 9 kept by him in his pocket and on account of the injury sustained by him, he could not attend the duties since he was undergoing treatment in the hospital. On that ground, he applied for leave. The first respondent did not pay heed to his request. But he called upon him to return to duty within 48 hours by letter dated 27.5.1976. The second petitioner sent two letters dated 19.5.1976 and 23.6.1976 and the first respondent refused to receive the same. The second petitioner received a letter on 4.1.1977 to the effect that his services would stand terminated with effect from 5.1.1977. It is only thereupon, I.D. No. 112 of 1977 was raised. It is contended that when the Labour Court found that the charge against the first petitioner that he was absent from 10.9.1976 to 13.9.1976 was not substantiated by any reliable evidence, it was not justified in granting only payment of compensation without the relief of reinstatement with continuity of service with full back wages and other attendant benefits on account of strained fellings. It is further submitted that as far as the second petitioner is concerned, the Labour Court on an appreciation of the evidence found that the observation of the Enquiry Officer that the second petitioner did not obtain leave or permission is not correct. The second respondent/Labour Court came to the conclusion that the domestic enquiry was not properly conducted and the management had not made out any case for dismissing the second petitioner from service. The second respondent is not justified in denying the normal relief of reinstatement with continuity of service and hack wages; but only awarded payment of compensation of Rs. 2,000. As far as the first petitioner is concerned, the management never pleased that the first petitioner was holding a post of trust and confidence; nor have they let in any evidence to prove and establish the strained feelings. In any event, the strained feeling cannot be a ground to put against the worker for denying him the normal relief of reinstatement with continuity of service etc. Similarly as regards the second petitioner, the management has not proved any special cause or circumstances for showing that he was unworthy of being taken back into service. In any event, the compensation awarded in both the cases is very paltry and meagre sum. Hence this writ petition.
4. In the counter-affidavit filed on behalf of the first respondent by one Raju, who is a close relative of the first respondent, under instructions, on 13.3.1992 while denying the facts submitted that the first respondent held 4 stage-carriage permits and transferred all of them along with the bus as detailed in the counter-affidavit, namely, Route No. 91 to V. Lakshmanan Pillai in 1976, Route No. 75 to the first respondent's son Harikrishnan in 1977, Route No. 58 to M/s. Kumaran Bus Transports in March, 1979 and Route No, 117 to the first respondent's son S. Kaliamurthi (third respondent herein) in September, 1979. The first respondent is aged about 75 years and he has closed the transport business in 1979 and as such, no question of reinstatement arises. He has also contended that the discussion of the Tribunal order shows that the worker, namely, the first petitioner, has not been fully exonerated from the charges and hence the reasons of the Labour Court to hold that the charges have not been substantiated on reliable evidence, are untenable. As far as the second petitioner is concerned, it is stated that the Labour Court without properly considering the evidence held that the charges have not been established. It is further submitted that the second respondent taking into account the totality of the circumstances and taking into account the strained relationship between the workers and the management, awarded compensation of Rs. 1,000 to the first petitioner and Rs. 2,000 to the second petitioner as compensation. It is further stated that since the Labour Court (second respondent) awarded compensation of Rs. 1,000 and Rs. 2,000 to petitioners 1 and 2 respectively, the first respondent has not challenged the finding of the Labour Court by filing separate writ petition. Lastly it was stated that since this writ petition was heard and increases in the quantum of compensation was suggested, the first respondent has not filed his counter-affidavit earlier and he is filing the counter-affidavit only now i.e. 13.3.1992.
5. In the counter affidavit dated 13.3.1992 filed by the third respondent, while denying the averments stated in the affidavit filed by the petitioners, it is submitted that the petitioners were in employment under his father when he was running the bus service as conductors and as stated in paragraph 3 of the affidavit, the first petitioner was discharged from service on 18.12 : 1976 and the second petitioner was dismissed from service on 4.1.1977, When they filed I.D. No. 112 of 1977 on the file of the second respondent, it was contested by his father, the first respondent. It is further submitted that out of the four buses, his father transferred three buses to other persons and lastly one bus in his (third respondent) favour in September, 1979 and his father ceased to be a bus operator. Along with the bus and the permit, he has taken two drivers and two conductors working in that bus. On that date, both the petitioners were dismissed from service in 1976 and 1977 and they were not in employment at the time when the last of the permits held by him was transferred in his favour. There is no legal or any other liability to pay any amounts to the petitioners herein and he is not a necessary party.
6. The point that arises for consideration in this writ petition is, whether the petitioners are entitled to be reinstated in service with full back wages and continuity of service.
7. The learned Counsel for the petitioners, Mr. Venkataraman, mainly submitted that the second' respondent having found that the management failed to prove the misconduct against the petitioners and their discharge and dismissal from service are unjustified, ought to have awarded them the normal relief of reinstatement with full back wages and continuity of service. He would submit that when the management did not challenge the award, it has become final so far as the management is concerned and it is not open to them now to put forth the contention at the late stage after the arguments were over by contending that the finding is not proper. Since the workers, namely, the writ petitioners, have been denied the proper relief and the second respondent has not exercised its discretion judiciously, they have come forward with this writ petition. He would vehemently argue that the second respondent has committed a grave error of law and perversity in holding that the management has lost confidence in the first petitioner, when that was not even the case of the management either in the pleadings or anywhere. As regards the strained feelings, the management has not let in any evidence. Mere strain in the feelings created on account of proceedings initiated by the management against the first petitioner cannot be a ground for depriving the first petitioner of his entitlement to the relief of reinstatement with continuity of service and full back wages. As regards the second petitioner also, the strain in the feelings in a creation of the management and the same cannot be a ground for denying his entitlement to the normal relief of reinstatement with full back wages and continuity of service. When the management has not established any special cause or special circumstances, the second respondent is not justified in refusing to grant the relief of reinstatement. The learned Counsel submitted that the second respondent failed to take into consideration while passing the award the security of service of employment and that led to the miscarriage of justice. In this connection, the learned Counsel drew the attention of this Court to the relevant portion of the award. In para 9 of the award, the second respondent/Presiding Officer, Labour Court, discussed the evidence adduced by the first respondent before the enquiry officer in respect of the alleged absence without obtaining any prior permission or leave which is the charge levelled against the first petitioner. At the end of the paragraph it was held as follows : - The charges framed by the management against Balasubramanian had not been substantiated by any reliable evidence. The learned Counsel also pointed out that the Labour Court observed : "The fact that Balasubramanian attended to his duties on the remaining dates in August, 76, as mentioned in Ex.M-24 will support his contention that he was willing to work and that the respondent did not allot him any work. The Labour Court accepted the contention of the first petitioner that though he was willing to work, he was not allotted any work. In respect of the second petitioner, he has applied for leave during the relevant period as he was undergoing treatment for the injury in the hospital. Ex.M-25, money-order coupon regarding his salary, only supports the case of the second petitioner. In para 10 of the award, the second respondent has observed that the first petitioner was working on a permanent basis for the past 5 years on a salary of Rs. 178 per month. The second respondent further observed that the first petitioner sent Ex.M-10 petition to the police alleging that the proprietor did not allot him duty and threatened him and sent him out of office. He has also observed that in his claim statement, the first petitioner alleged that the first respondent used to threaten him and will not allot him work even though he was willing to attend to his duty. After discussion, the second respondent came to the conclusion at the end of para 10 of the award; "It is clear that the worker and the management have developed strained feelings and have lost confidence on each other. Under such circumstances, in the interests of the worker, an order for payment of compensation will be the appropriate relief that can be granted to him." In the case of the second petitioner, after considering the evidence adduced on behalf of the parties, the second respondent came to the conclusion in para 14 : "The observation of the enquiry officer that the second petitioner has not obtained prior permission is not quite correct." The allegation against the second petitioner is that he has absented himself from duty without permission from 16.4.1976. The second respondent found in his award : "Ex.M-18, dated 16.4.1976 shows that the worker has applied for leave as he was undergoing treatment in the hospital. In Ex.M-13, the explanation of the worker has not been called for on the ground that he was absenting himself from duty. It is stated in Ex.M-13 that the worker should report for duly within 48 hours failing which action will be taken against him. No further charge-memo has been issued to the worker Rathinam asking for his explanation. "Ultimately the second respondent came to the conclusion as follows : "If the case of the management is true, the entire salary for April, 1976 would not have been sent to the worker by money order. The enquiry against Rathinam was conducted ex parte. It is clear that the domestic enquiry had not been properly conducted against the worker Rathinam. "The reason given by the second respondent for not ordering his reinstatement but only awarding compensation was that as per Ex. W-18 the worker, namely, the second petitioner, would allege that the proprietor beat him and took away cash of Rs. 9 from his pocket. As per Ex.M-17 he wanted police protection even to attend the domestic enquiry. Ex.M-40 shows that the worker, namely, the second petitioner, has filed a criminal complaint against the proprietor/ first respondent before the judicial First Class Magistrate, Tiruchirapalli, for an offence punishable under Section 392, I.P.C. Under such circumstances, in the interest of the worker, the payment of compensation will be the proper relief and that can be granted to him and accordingly a sum of Rs. 2,000 was awarded. The learned Counsel for the petitioners submitted that the petitioners were granted only compensation, even though the Presiding Officer/second respondent held that the non-employment of the workers, namely, petitioners 1 and 2, is not justified. In this connection, it is worthwhile to consider the various case-laws cited on behalf of the petitioners. In M/s. Tulsidas Paul v. Second Labour Court (1971)1 L.L.J. 526, the apex court held that the normal rule was one of reinstatement where the dismissal or removal from service was found to be unjustified and wrongful. Compensation should be awarded by Labour Court only, in exceptional and unusual circumstances. Such discretion should be exercised by the Labour Court in a spirit of fairness and justice. In the above quoted case, it was ultimately held in para 10 as follows:
It appears from the judgment of the learned single Judge that he was moved to interfere with the order of reinstatement, firstly, on the ground that it would be received by the other workmen with ill grace and might result in fresh hostilities between the two groups of workmen, and secondly, that employment of workmen in this case being seasonal the employers were not bound to engage the same workmen in the next season. We find it difficult to sustain this reasoning. As observed by the Division Bench, the employers did not at any stage before the tribunal place the question of reinstatement in issue. Nor did they establish that reinstatement would result in fresh industrial hostilities. In the absence of any proof that that would be the consequence of reinstatement, the conclusion of the learned single Judge that it would so result was only an assumption.
In that view, the Supreme Court dismissed the appeal upholding the decision of the Division Bench. In Workmen of United Bleachers v. United Bleachers (1968)1 L.L.J. 529, Kailasam, J. (as he then was) held that the reinstatement cannot be denied on the ground that the relationship between the management and the workman was strained. It was further held in the said decision:
Further, in this case the management never pleaded that in the event of the labour court finding Krishnan is entitled to reinstatement he could be amply provided for by compensation.
That is a case where the workman Krishnan was suspended and subsequently dismissed. An industrial dispute was raised in the Labour Court and the Labour Court directed reinstatement with back wages. The management did not reinstate him. On the day he reported for duty, he was retrenched. A dispute was raised regarding the non-employment of such workman. The Labour Court ordered compensation instead of reinstatement. The award was challenged in Writ wherein it was mainly contended that the relationship between the management and the workman was strained and also on the ground of delay. That contention has been negatived and the writ was allowed in favour of the workman. In Workmen of Assam Match Co., Ltd. v. Labour Court (1973)2 L.L.J. 279, the apex court has observed that the Tribunal has found that the domestic enquiry held by the management against the workman for his alleged misconduct was unfair and invalid. It also found that the charges against the workman were baseless and the findings of the enquiry officer were perverse. Even so the Tribunal took the view that there may not be cordial relationship between the parties of the workman is reinstated and on that ground alone the tribunal refused to order reinstatement. In the circumstances it was held:
It is well-settled that where in an industrial dispute arising out of a dismissal of a workman it is established that the impugned dismissal was unjustified the normal rule is that the dismissed workman should be reinstated.
It is further held:
If an employer is shown to have dismissed his employee/without justification and the decision of the dispute resulting from such dismissal takes time, it cannot be urged by the employer that by passage of time, reinstatement should not he ordered. One of the objects which industrial adjudication has to keep in mind is to assure industrial employees security of tenure. The normal rule is that when the dismissal is unjustified the employees should be reinstated.
It was further held:
The next contention is that the respondent has lost confidence in Dutt. This argument is misconceived. We do not think It would be possible to accept the contention that even if employer is shown to have dismissed the employee wrongfully and without justification the fact that he adopted such course should be taken into account while determining the question whether reinstatement should be ordered or not. If this contention is accepted the industrial employee illegally and unjustifiably dismissed would never get the relief of reinstatement.
Ultimately the appeal was allowed and the reinstatement of the industrial employee was ordered with back wages. In Vinayak Bhagwan Shetty v. Kismat (P) Ltd. and Anr. (1984).1 L.L.J. 203, a Division Bench of the Bombay High Court held:
It is difficult to sustain the view taken by the Labour Court that the employee was not entitled to reinstatement because the action in discharging the employee was not vindictive. Assuming for a moment that it is not established that the action taken was vindictive, that would be wholly irrelevant because the moment the misconduct is not proved and the penal action is found to be unjustified and unsustainable, the termination must cease to be a bona fide termination. But for the misconduct, which the employer had taken as proved, there could not have been any order of dismissal. If the foundation of this action for dismissal disappears, namely, the proof of misconduct the order of dismissal must also stand vacated.
In Workmen, Ennore Foundries v. Manager (1978)2 L.L.J. 222, Ismail, J. (as he then was) held:
If the Labour Court finds that the orders of dismissal were unjustified, the normal relief that it should grant was one of reinstatement and payment of compensation in lieu of reinstatement should only be granted in special or exceptional circumstances. It was held that the Labour Court had not recorded any exceptional or special circumstances in the instant case which warranted the departure from the normal rule of granting the relief of reinstatement. The Labour Court in the circumstances was directed to bear these principles in mind in deciding the case on remand.
In R. Sankaran v. Additional Labour Court, Madras and Anr. (1977) Lab.J.C. 1338, it was held that the strained relationship cannot constitute a valid ground for negativing the claim for reinstatement. In The Management of L.T. Pvt Ltd v. N. Palaniswanii and Ors. (1987)1 L.L.J. 458, a Division Bench of this Court, after considering the various earlier decisions held:
It is the duty of the Management to place material before the Labour Court or the writ court for refusal of back wages to workman. If the Management has failed to place such materials for refusal of back wages before the Labour Court or High Court a writ would be justified in granting the relief of reinstatement and consequential monetary benefits in the shape of back wages.
That was a case where it was found that on the merits of the case none of the charges was proved and therefore the dismissal was not justified. However, the Labour Court refused to grant the relief of reinstatement on the ground that the worker was absent from service for a long time and the management has made some alternative arrangement and on this ground it ordered the payment of Rs. 10,000 in lieu of reinstatement. After the award the management sent a cheque covering the amount awarded by the Labour Court. Accepting the cheque under protest and without prejudice to file a writ petition, the writ petition was filed by the worker for quashing the award made by the Labour Court in so far as it declined to grant the relief of reinstatement and the writ petition was allowed holding that the worker should be reinstated in service with all consequential monetary benefits. That was challenged by way of writ appeal and it came before the Division Bench. As stated earlier, the Division Bench after considering the various earlier decisions, upheld the decision of the learned single Judge and held that a writ would be justified in granting the relief of reinstatement and consequential monetary benefits in the shape of back wages. Applying the ratio laid down in the above decisions to the facts of this case, it is seen that the Presiding Officer, Labour Court/second respondent came to the conclusion that none of the charges levelled against the petitioners relating to misconduct has been proved and in the case of the second petitioner there was no fair enquiry and the enquiry before the disciplinary authority is vitiated. However, the second respondent without ordering reinstatement with back wages awarded compensation of Rs. 1,000 to the first petitioner and Rs. 2,000 to the second petitioner on the ground of strained relationship between the workmen and the management. It is to be noted that it is nowhere pleaded by the management that there was any strained relationship and that the petitioners are not entitled to the relief of reinstatement in case the charges are not proved. No evidence was also adduced. There was absolutely no exceptional or special circumstances in the instant case which warrant departure from the normal rule of granting the reinstatement. The first petitioner was employed for about 5 years as conductor and the second petitioner was employed for about ten years. The charge against the first petitioner was that he absented himself for some days. The charge against the second petitioner is that he did no! report for duty as desired by the management and he was absent both the charges, as already stated, were not proved and hence the order of dismissal was held to be improper and illegal. Though in the belated counter-affidavits filed before this Court after the arguments were over it was contended that after the award was passed, the first respondent has transferred the route buses to the third respondent and others, the above contention was not put forward at the earliest point of time and the petitioners have no opportunity to rebut the same. Even otherwise, as rightly contended by the learned Counsel for the petitioners, the first respondent-management cannot circumvent the order by resorting to transfer the buses while the proceedings are pending before the court. The learned Counsel for the petitioners submits that the petitioners will work out their remedy if reinstatement with back wages is ordered and that cannot be a bar for granting the relief prayed for in this writ petition. I find every force in the said contention. The learned Counsel for respondents 1 and 3, Mr. M. Kalayanasundaram, did not dispute the proposition of law laid down in the various decisions cited above. But, what all he contended is that there was a proposal for compromise by enhancing the compensation and in the circumstances of the case the petitioners can receive higher compensation instead of insisting for reinstatement and back wages etc. The mere fact that there was a talk of compromise at the suggestion of the Bench of this Court on an earlier occasion cannot be a ground for negativing the relief prayed for in the writ petition. Thus, on a careful consideration of the entire materials, I am of the view that the petitioners are entitled to the relief of reinstatement and back wages as prayed for and the award of compensation in lieu of reinstatement is not valid and proper.
8. In the result, the writ petition is allowed, the award passed by the second respondent in so far as it relates to the refusal of grant of the relief of reinstatement with back wages, but ordering compensation only, is set aside and there will bean order in favour of the petitioners for reinstatement in service with back wages and continuity of service as prayed for. However, in the circumstances of the case there will be no order as to costs.