Madras High Court
The Management Of Kattabomman ... vs The Labour Court And T. Ranjithamani on 13 October, 2003
Equivalent citations: (2004)ILLJ776MAD
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The petitioner, the Management of Kattabomman Transport Corporation Limited, Vannarpet, Tirunelveli has filed this writ petition aggrieved by the award made in I.D. No. 654 of 1992 dated 9.10.95 passed by the Labour Court, Tirunelveli in directing the second respondent to be reinstated into service with backwages and continuity of service.
2. The second respondent (hereinafter referred to as a "workman") was appointed as Driver in the petitioner Kattabomman Transport Corporation Limited (hereinafter referred to as the "Corporation"). While the workman was not on duty on 11.3.84, he created untoward incident at Tuticorin Depot with broken soda bottles in drunken mood and attempted to beat the general foremen and a driver by name Thangaraj. Though a criminal complaint was lodged, the workman was acquitted giving benefit of doubt. In view of the said incident and according to the Corporation the workman was a casual worker, his name was removed from the list of casual labourers on 17.3.84 for his misconduct on 11.3.84. The workman raised a dispute under Section 2A of the Industrial Disputes Act, 1947. By the impugned award, he was ordered to be reinstated with backwages and continuity of service. The said award is challenged in this writ petition.
3. Mrs. Kala Ramesh, learned counsel for the Corporation would challenge the award on the ground that though the removal of the name of the workman from the list of casual labourers was on 17.3.84, the dispute was raised only in the year 1992 after a lapse of nine years and the Labour Court ought not to have entertained the dispute. Secondly, she would contend that the workman being a casual labour, is not entitled to issuance of any charge sheet and enquiry, preceding the removal of his name from the list of casual laborers. The finding of the Labour Court inasmuch as the workman is also entitled to charge sheet and enquiry before his name was removed from the list of casual labourers is totally unsustainable. Thirdly, the learned counsel submitted that when the Corporation has let in evidence by marking documents from Ex.M-1 to Ex.M-5 to prove the incident, merely because the two witnesses examined on behalf of the Corporation did not speak about the date and time of the occurrence, the Labour Court misappreciated the evidence by taking into consideration of the minor discrepancies and therefore, this Court is empowered to correct the said error by properly appreciating the evidence. In the event the evidence is properly appreciated, the charge against the workman should be held to be proved. In support of the said submission, the learned counsel relied upon a judgment of the Apex Court in "P.G.I. OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARH v. RAJ KUMAR (2001 (2) SCC 54)". Finally, the learned counsel submitted that in any case, in the absence of any finding by the Labour Court that the workman is a permanent workman, it ought not to have ordered backwages and continuity of service.
4. Mr. K.S. Narayanan, learned counsel for the workman, on the other hand, submitted that proper explanation was adduced for the ground of laches. In fact, except the defence taken in the counter affidavit as to the laches, no evidence was let in by the Corporation and no issue was framed and consequently there was no discussion. In the absence of the same, it is not now open to the Corporation to raise the same issue before this Court. In support of the said submission, the learned counsel would rely upon the judgment of the Apex Court in "AJAIB SINGH v. SIRHIND COOPERATIVE MARKETING-CUM-PROCESSING SERVICE SOCIETY LTD. & ANOTHER (1999 (1) LLJ 1260)". Insofar as the contention of the Corporation as to the issue of casual worker, the learned counsel submitted that Section 2(s) of the Industrial Disputes Act does not make any difference so far as the disciplinary proceedings are concerned between a permanent worker and a casual worker. Even a casual worker is entitled to an opportunity of being heard before his services are sought to be disturbed. To support the said submission, the learned counsel would rely upon the judgments of this Court in "THE PILOT PEN COMPANY (INDIA) PRIVATE LTD. , v. THE PRESIDING OFFICER, ADDITIONAL LABOUR COURT, MADRAS AND ANOTHER (1971 (1) LLJ 241)" and in "E.ELUMALAI v. THE MANAGEMENT OF SIMPLEX CONCRETE PILES (INDIA) LTD. , MADRAS AND ANOTHER (1970 LAB.I.C.1460)." Insofar as the submission on merits, the learned counsel submitted that the Labour Court after having properly appreciated the evidence of the management witnesses has come to the conclusion that the charges have not been proved. The Labour Court had also taken into consideration not only the discrepancy as to the time and date, but also the very presence of the eye witnesses at the scene of occurrence by names Thangaraj and Pounraj. Such appreciation of evidence which resulted in the finding cannot be reappreciated by this Court. Insofar as the last submission as to the award of backwages and continuity of service, the learned counsel submitted that since the workman is considered as permanent workman, the directions for backwages and continuity of service are sustainable.
5. I have given my due consideration to the above submissions. Insofar as the question of laches, I find that though the same has been raised by the Corporation in the counter affidavit, no issue was framed on this point and no discussion was made by the Labour Court. In the circumstances, it is to be seen as to whether the question of laches should be raised before this Court. It is well settled law that while judging the correctness of the award, this Court should do so only on the basis of the material available before the Labour Court. It is an admitted fact that though a plea of laches is raised, the Corporation did not let in evidence to sustain the said plea. The Apex Court in Ajaib Singh's case v. reported in (1999 (1) LLJ 1260) supra, while considering the question of laches, has laid down the following law:-
"It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or Board, dealing with the case can appropriately mould the relief by declining to grant backwages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the backwages instead of full backwages. Reliance of the learned counsel for the respondent-management on the Full Bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana, 1999(1)SCT 141 is also of no help to him. In that case the High Cout nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held "neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases."
When the law is settled by the Apex Court as to the laches and when the Labour Court has entertained the dispute without reference to the laches, it must be presumed that the Corporation did not insist on laches very seriously by contesting the same by letting in evidence. Hence, I am unable to accept the submission of the learned counsel for petitioner that the dispute ought to have been rejected on the ground of laches.
6. Insofar as the second submission as to the workman being a casual employee, in more than one case this Court has held that Section 2(s) of the Industrial Disputes Act does not make any difference between a permanent and a temporary/casual workman so far as the disciplinary proceedings and the opportunity of being heard is concerned before his services are terminated. Useful reference can be made to the judgment of this Court on the point in the Pilot Pen Company (India) Private Limited case reported in (1971 (1) LLJ 241) supra. The relevant paragraph of the judgment reads as under:-
"The next contention urged on behalf of the petitioner-management is that the 16 persons were casual labourers and cannot be said to be "workmen" within the meaning of the Act and that casual labourers are not entitled to any benefit under the Act. The term "workman" is defined in S. 2(s) of the Act. It provides:
"workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceedings under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Army Act, 1950 (46 of 1950) or the Air Force Act, 1950 (45 of 1950) or the Navy (Discipline) Act, 1934 (34 of 1934); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
From the language of this definition, there is no room to incorporate into it the idea that only a permanent employee can be construed to be workman. It is not as though the Legislature did not comprehend any necessity to make a provision for a casual workman. After defining 'workman' in a general way so as to include not only permanent workmen but also temporary or casual workmen, the Legislature enacted in S. 25G the right of the workmen to lay-off compensation. In making that provision, casual workmen are expressly excluded from the benefit. Section 25F lays down the conditions precedent to retrenchment of workmen. There the legislature has taken care to prescribe the qualification for getting the benefit of retrenchment. Any workman who has been in continous service of not less than one year under an employer can alone claim the benefit of that provision. What is one year of continuous service is defined in S. 25B. Therefore, there is no room to think that a casual workman cannot be construed to come within the scope of the definition of 'workman' as contended on behalf of the petitioner. If a casual workman satisfies the requirement of S. 25B, then he would be a person in continuous service for one year and would be entitled to the benefits of the Act."
The same view has been taken by this Court in E. Elumalai's case v. reported in (1970 LAB I.C. 1460) supra. In that view of the matter, in terms of Section 2(s) of the Industrial Disputes Act, it must be held that even a casual employee is entitled to a charge sheet, enquiry before his services are terminated, even for that matter his name is removed from the list of casual laborers. Hence, the second submission of the learned counsel for petitioner is also liable to be rejected.
7. Coming to the third submission on merits, though the Corporation has marked the FIR as Ex.M-1 and the three complaints given by one K. Thangaraj, S. Govindaraj and Thiru. Pounraj marked as Exs.M-2 to M-4 respectively, the evidence let in on behalf of the management witnesses namely, M.W.1 and M.W.2 does not correlate with the documentary evidence inasmuch as the evidence let in did not disclose the date and time of the occurrence. In fact, in the evidence it is seen that one of the eye witnesses by name Narayanasamy was not even at the scene of occurrence. This discrepancy cannot be considered as minor discrepancy, as it goes to the issue of the very occurrence itself. Of course, while appreciating the evidence, minor discrepancy cannot be taken into consideration as strict rule of evidence is not applicable to the enquiry proceedings. But, when the Labour Court, on the basis of the relevant evidence, had come to the conclusion that the incident itself was not proved, this Court cannot reappreciate the same and come to a different conclusion unless the finding is so perverse or supported by any material. I find no perversity in the said finding of the Labour Court. Learned counsel for the workman attacked the finding of the Labour Court on the ground that the Labour Court has misappreciated the fact and also relied upon a judgment of the Apex Court in P.G.I. Medical Education and Research case reported in (2001 (2) SCC 54) supra, in support of her contention. This contention of the learned counsel cannot be accepted as it is not a case of misappreciation of evidence, but is an appreciation of oral evidence finding contradictions to the documentary evidence. Hence, the judgment relied upon by the learned counsel for workman is not applicable to the facts of this case. Accordingly, I reject the said contention also.
8. Coming to the last submission of the learned counsel for workman that in the absence of any finding by the Labour Court that the workman is a permanent employee, the Labour Court ought not to have ordered backwages and continuity of service. I find force in the said submission of the learned counsel for workman. Though the said defence was raised by the Corporation, the Labour Court did not frame any issue as to whether the workman is a casual employee or a permanent employee for the purpose of awarding consequential reliefs. It is one thing to contend that the order of termination is vague for want of conduct of enquiry even in case of a casual employee. But, in order to award consequential backwages and reinstatement, the Labour Court should come to a definite conclusion that the workman is a permanent employee on the date when he was removed from the rolls. In the absence of such finding, no direction can be given, as the backwages and continuity of service is not automatic and it depends upon the facts and circumstances of each case. In the absence of any discussion on this issue, I find no material to sustain the award in respect of the backwages and consequential reliefs. Moreover, the award, in effect directs the permanent absorption of the workman, which relief would be outside the scope of enquiry in the dispute. Accordingly, that portion of the award in awarding backwages and consequential benefit is alone set aside and the matter is remanded back to the Labour Court for fresh consideration. Both the Corporation and the workman are entitled to let in evidence on this aspect alone and the Labour Court shall pass the further award only in respect of the backwages and continuity of service.
9. The writ petition is partly allowed only to the above extent. No costs.