Madras High Court
A.Kanakaraj vs The Presiding Officer on 20 November, 2024
WP.No.2412 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 28.10.2024
Pronounced on : 20.11.2024
THE HON’BLE Dr. JUSTICE A.D. MARIA CLETE
W.P. No. 2412 of 2003
1.A.Kanakaraj,
No. 12, 167, Kamaraj Nagar,
Jothipuram,
Coimbatore 641 047.
2.K.Jayamani,
130, Goundampalayam,
Coimbatore - 641 020
3.K.Saraswathi,
6, Poyar Street,
V. Palayam,
Pothanur Post,
Coimbatore - 641 023
4.Chitra,
12, Sarada Devi Street,
Ramakrishnapuram,
Coimbatore - 641 006.
5.P.Malarvizhi,
12/61, Maduraiveeran Koil Street,
K.V.Palayam, Pothanur,
Coimbatore - 641 023. … Petitioners
https://www.mhc.tn.gov.in/judis
1
WP.No.2412 of 2003
Vs.
1.The Presiding Officer,
Labour Court,
Coimbatore.
2.The Management,
Colimbatore Polishing Works (P) Ltd.,
313/4, 3/3/5, Mettupalayam Road,
Narasimhanaickenpalayam Post,
Coimbatore - 641 031. … Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India, to
issue an appropriate Writ, Order or Direction, more particularly a Writ in the
nature of Writ of Certiorari calling for records from the files of the first
Respondent in I.D.Nos.266, 267, 268, 269 and 270 of 1997 and quash its
impugned award made therein dated 21.09.2001 in so far as it has denied the
claim of the Petitioners for reinstatement in service, with continuity of service,
with back wages and with all other attendant and consequential benefits and to
award costs.
Appearance of Parties:
For Petitioners : Mr.S.Sathish Kuamr,
https://www.mhc.tn.gov.in/judis
2
WP.No.2412 of 2003
for M/s. Row and Reddy,
For R2 : Mr. T. Raghunathan,
for M/s. T.S. Gopalan & Co.,
ORDER
Heard both sides.
2. This writ petition was filed by the five petitioners who were workmen under the 2nd Respondent Management. They are challenging the Common award passed in I.D.No 266, 267, 268, 269 and 270 of 1997 dated 21.09.2001 wherein the first Respondent Labour Court denied them relief. The petitioners seek to set aside the Common Award and to be reinstated with continuity of service, back wages and all other attendant benefits. For convenience, the petitioners are referred to as workmen and the second Respondent as the management.
3. These five workers, appointed on different dates, were dismissed by the management by orders dated 15.06.1996. Along with these five workers, two other workmen S. Padma (I.D.No.265/97) and S. Sarojini (I.D.No.4/97) https://www.mhc.tn.gov.in/judis 3 WP.No.2412 of 2003 were also dismissed. Despite the seriousness of the allegations against them— participation in an illegal strike, going outside the department during working hours, and using abusive language towards co-workers and supervisors—no enquiry was conducted. The management stated that though it was decided to conduct an enquiry against them which they were kept under suspension, the situation in the work establishment was not conducive to conducting an enquiry and given the extraordinary situation they were dismissed for the misconduct alleged w.e.f.15.06.1996.
4. All the dismissed workmen raised industrial disputes under Section 2A of the Industrial Disputes Act 1947 (ID Act) before the Government Labour Officer in Coimbatore vide their representation dated 26.07.1996. When the Conciliation Officer could not resolve the matter, he issued a failure report dated 01.10.1996. On the strength of the same and as provided under law, all the workmen filed claim statements with the first Respondent Labour Court, where the disputes were registered as I.D.No.265/97 (S. Padma), I.D.No. 266/97 (K. Kanagaraj), I.D.No.267/97 (K. Jayamani), I.D.No. 268/97 ( K. https://www.mhc.tn.gov.in/judis 4 WP.No.2412 of 2003 Saraswathi), I.D.No. 269/97 (G. Chitra), I.D. No. 280/97 (P. Malarvizhi) and I.D. No.4/97 (S. Sarojini).
5. On notice from the Labour Court, the management filed a counter statement dated 25.02.1998. In the statement, apart from making allegations of misconduct against those workmen, the management not only denied the allegations of workmen that the terminations were without enquiry but also requested the Labour Court to permit them to lead fresh evidence in respect of the misconduct alleged against them. The workmen filed a rejoinder statement dated Nil, June 1998. During the trial, workman S. Padma filed a memo stating that she had settled the issue with the management and she was not pressing her claims before the Labour Court. Based on the said memo, the Labour Court dismissed her dispute in I.D.No.265/1997. However, it is seen that she had entered into a settlement under Section 18(1) of the I.D. Act dated 20.03.2000 and was paid Rs. 35,000/- towards all her claims.
6. However, in the case of S. Sarojini (I.D.No. 4/1997), a joint memo was filed by the workmen and the management stating that the matter was settled https://www.mhc.tn.gov.in/judis 5 WP.No.2412 of 2003 out of Court, with her receiving Rs. 25,000/- for all her claims. The first Respondent Labour Court by its order dated 06.08.1998 dismissed I.D.No.4/1997. The Labour Court based on the request of the management allowed them to lead evidence in support of the charges levelled against the workers, where four witnesses for the management were examined (MW1 to MW4), and 39 documents were marked (Ex. M1 to Ex.M39). On the worker’s side, two witnesses were examined ie., G.Chitra (I.D.No.269/97) as WW1 and K.Saraswathi (I.D.No.268/97) as WW2 with common documents marked as Ex.W1 to Ex. W19.
7. The Labour Court held that the workmen's demand for a wage increase was rejected by the management. The workmen alleged that several among them were physically attacked by personnel hired by the management and that they were subsequently dismissed without the advice of the Conciliation Officer, despite pending disputes over their charter of demands and that this amounted to victimization for their legitimate trade union activities. However, the management’s witnesses testified that the workmen were issued show cause https://www.mhc.tn.gov.in/judis 6 WP.No.2412 of 2003 notices backed by clear charges and supported by the testimony of four witnesses.
8. Detailed testimonies by MW1, MW2, and MW3 outlined specific allegations against the workmen, while MW4, General Manager, corroborated these claims and emphasized that the workmen's actions were illegal. Evidence demonstrated that the workmen had admitted to instigating others, using abusive language, and engaging in acts of misconduct, including those detailed in the second show cause notice. The Labour Court concluded that the misconduct allegations were substantiated, and the management had followed due process by issuing show cause notices and considering the workmen's replies, which were deemed unsatisfactory.
9. Regarding the charge of victimization due to trade union activities, the Labour Court observed that such allegations are serious and require specific, acceptable evidence. The workmen, however, failed to present credible evidence or examine coworkers to substantiate their claims. They have also not given any reason for not examining them and thus, the victimisation claim was https://www.mhc.tn.gov.in/judis 7 WP.No.2412 of 2003 not acceptable. The court also referred to the incident on 11.01.1996 in front of the company, when the workmen allegedly threatened to set fire to a bus not worried about going to jail for 10 days, used abusive language, and insulted on- duty police officers, that these events were corroborated by the testimonies of management eyewitnesses MW1, MW2, and MW3.
10. During cross-examination, the workmen did not refute the specific allegations concerning the incident on 11.01.1996. The absence of any questions denying the incident was taken as implicit acceptance of the events. Witnesses testified that the workmen used abusive language toward female workers, threatened the driver and conductor of the public bus, and made disparaging remarks to the policemen present. The Labour Court noted that such behaviour constituted serious misconduct.
11. While the workmen claimed affiliation with the MLF Union, they failed to produce any union representatives as witnesses. Ramamurthi, an office bearer of the union, was present during the incidents but was not examined to https://www.mhc.tn.gov.in/judis 8 WP.No.2412 of 2003 corroborate their claims. This omission weakened their case, especially in the face of allegations that they had threatened other workers and disrupted operations because of that they were suspended. The Labour Court found no evidence to suggest that the management had selectively targeted these workmen out of a workforce of 600, which predominantly consisted of women. The management’s actions were deemed appropriate responses to proven instances of misconduct.
12. Though the workmen claimed that workers in a sister organization were attacked during the strike, these claims were denied by the management. The court noted that a settlement under Section 12(3) of the Industrial Disputes Act, dated 19.01.1995, was in force until 31.12.1996. This settlement, marked as Ex M33 had been signed by the workmen’s representatives, including WW1 and WW2, who admitted during testimony that the agreement was valid. The first witness WW1 had agreed that though the settlement was still in force charter of demands was placed. The second witness WW2 also agreed with the same. She had also stated that while she was in MLF Union, some demands were placed. The Labour Court found that placing new demands before the https://www.mhc.tn.gov.in/judis 9 WP.No.2412 of 2003 settlement's expiry was not correct and that the workmen had failed to provide adequate justification for their actions.
13. The Labour Court dismissed the workmen's argument that suspensions exceeding 30 days violated the standing orders, referencing advice from the Deputy Commissioner of Labour (Ex. M34). Regarding the allegations that coworkers were assaulted by hired personnel allegedly engaged by the management, the court found no evidence to substantiate these claims. The related criminal case, filed by the workmen and documented under FIR (Ex. W8), concluded in an acquittal, as noted in Ex. M39. Consequently, the court held that the workmen’s justification for going on strike—alleging attacks orchestrated by the management—was unfounded. Also, the Labour Court observed that the workmen had participated in conciliation talks held on 04.06.1996 (Ex. M30). However, the government subsequently declined to refer the dispute for adjudication (Ex. M35), and this decision was not challenged by the workmen before any legal forum.
https://www.mhc.tn.gov.in/judis 10 WP.No.2412 of 2003
14. The Labour Court also said that it was not inclined to interfere with the punishment by invoking power under Section 11A of the I.D. Act since the allegations of misconduct were serious and no sympathy can be shown. It held that the workmen have not made clear allegations against the management and proved them in the enquiry and there are contradictions in their evidence. Therefore, the question of giving them reinstatement does not arise. The workmen were given show cause notice and after their explanation were suspended, and only after a second show cause notice they were dismissed. This will show that it was only because of their indulging in misconduct they were dismissed which is proved from the evidence of the witnesses and the documents.
15. The Labour Court accepted the management’s argument that reinstating the workmen would breach workplace peace and potentially cause loss to the management. There is no smooth relationship between the parties. Hence, the Labour Court concluded that the charges levelled against the workmen were proven and they were not victimized was also established by the management. They were dismissed for specific misconduct, which was https://www.mhc.tn.gov.in/judis 11 WP.No.2412 of 2003 justified. Therefore, the workmen were not eligible for any relief, and all the industrial disputes were dismissed by a common award dated 21.09.2001.
16. As against the said common award, the five workmen have filed the present writ petition and the same was admitted on 28.01.2003. Pending the writ petition, the workmen filed a Miscellaneous Petition being W.M.P. No. 3030 of 2003 seeking a direction to the management to employ the petitioners at least in a temporary capacity without prejudice to the rights of the parties pending disposal of the writ petition. However, this Court by its order dated 16.09.2003 dismissed the said miscellaneous petition stating that no such relief can be granted especially when the workmen had lost their case before the Labour Court. The management filed a counter affidavit dated 08.12.2005 and the matter was listed for final disposal right from the year 2008 and was being adjourned from time to time for the last 16 years.
17. The learend Counsel for the Petitioners contended that the common award was one-sided and the 1st Respondent’s findings are contrary to the evidence on record. It was alleged that the Labour Court failed to find that the https://www.mhc.tn.gov.in/judis 12 WP.No.2412 of 2003 management had engaged persons to assault the workmen and others on 10.12.1995 and the workmen sustained injuries that made them admitted as inpatients in the Government hospital. The Labour Court did not deal with this aspect. The finding of the Labour Court that the workmen had admitted that they were dismissed for two sets of charges was perverse especially when the workmen had alleged that their dismissal was arbitrary and illegal. The finding of the Labour Court that the workmen had left their work spot and went to another department to induce the workmen to go on strike was never admitted by them. What was admitted was that if such an action had taken place, that action was a clear case of misconduct and this cannot be stated to be an admission of their guilt.
18. The Labour Court failed to appreciate the evidence of the management witnesses MW1 to MW3 in a proper perspective and it had omitted to consider the glaring contradictions in their evidence. The allegation that they used bad words was also denied. The management did not examine any independent witness regarding their alleged action of threatening the passengers and bus crew outside the factory. The very fact the management https://www.mhc.tn.gov.in/judis 13 WP.No.2412 of 2003 chose to dismiss them and did not prefer to have any other lesser punishment provided under the standing order will show that they opted to send out the petitioners by all means. The advice given by the Deputy Commissioner of Labour stating that the parties can resolve their dispute during conciliation will only mean that the workers had raised demands against the management and the finding of the Labour Court to the contrary was erroneous.
19. The Learned Counsel for the workmen also submitted a statement showing the glaring contradictions in the evidence given by MW1, MW2, MW3 and MW4 even as early as on 20.12.2010 when the matter was listed before some other bench. It was contended that after the introduction of Section 11A, the powers of the Labour Court are that of an Appellate Court and it can reappreciate the evidence and come to a different conclusion if such a case warrants. A reference was made to the Judgment of the Hon'ble Supreme Court in Workmen of Messrs Firestone Tyre and Rubber Company of India (Pvt.) Ltd Vs. The Management & Others reported in 1973 (1) SCC 813 wherein the Hon'ble Supreme Court had explained the scope of 11A of the I.D. Act and it was explained as under:-
https://www.mhc.tn.gov.in/judis 14 WP.No.2412 of 2003 “We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ld., (AIR 1958 SC 130) existed. The conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding as perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position in our view, has now been changed by section 11A. The words “in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified” clearly indicates that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer, establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by, https://www.mhc.tn.gov.in/judis 15 WP.No.2412 of 2003 the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in India Iron & Steel Co. Ltd. (AIR 1958 SC
130) case can no longer be invoked by an employer. The Tribunal is at liberty to consider not only whether the finding of misconduct recorded by an employer is ‘correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter”
20. The learned Counsel for the Respondent Management contended that proper evidence as let in before the Labour Court and the misconduct alleged against the workmen were proved. For such proved misconduct, one cannot show any sympathy and the Labour Court had refused to exercise its discretion under Section 11A of I.D. Act and this Hon’ble Court should not exercise its power under Article 226 to interfere with the same.
https://www.mhc.tn.gov.in/judis 16 WP.No.2412 of 2003
21. In the light of the same, let us examine whether the impugned award of the Labour Court suffers from any infirmities, perversity and non-application of mind. Since the complete documents available with the Labour Court in connection with the impugned award were not filed, the records from the 1st Respondent Labour Court were called for and accordingly circulated for perusal. It was already noted that before dismissal the management did not conduct any enquiry and that was why the Labour Court admitted them to lead evidence. The fact that no enquiry was conducted can be seen from the dismissal order passed against them. It can be seen from the order of dismissal dt. 15.06.1996 (Ex. M8 series) given to G. Chitra (I.D.No. 269/97) wherein it was clearly stated that the enquiry was not held before dismissal:-
“nkw;;fz;l fhuzk; NfhUk; nehl;ORfisg; ngw;Wf; nfhz;l ePh; mitfSf;F 29.2.96 Njjp gjpiyf; nfhLj;Js;sPh;. Nkw;gb gjpy;fs; ghh;itaplg;gl;L mJ jpUg;jpfukhfNth Vw;Wf; nfhs;sf; $bajhfNth ,y;yhjjhy; ck; kPJ xU tprhuiz elj;j KbT nra;ag;gl;lJ. ,e;j epiyapy; ePh; jhw;fhypf r];ngd;;\dpy; njhlh;e;J ,Ue;J tUfpwPh;. ,e;j jhw;fhypf r];ngd;\d; fhyj;jpw;F ckf;F rl;lg;gb cz;lhd njhifAk;; nfhLf;fg;gl;L tUfpwJ.
...
https://www.mhc.tn.gov.in/judis 17 WP.No.2412 of 2003 ,e;j epiyapy; ck;kPJ cz;lhd tprhuizia eph;thfk; Xh; mikjpahd #o;epiyapy; elj;j Kbahj epiyapy; cs;sJ. ePUk; ck;ikg; Nghd;w r];ngd;\dpy; ,Uf;Fk; rf njhopyhsh;fSk; jpl;lkpl;L epahahkhd tprhuizia elj;j Kbahj #o;epiyia cUthf;fp ePbf;fr; nra;J tUfpwPh;. mjw;F ePq;fs; midtUNk nghWg;ghtPh;fs;. NkYk; ,e;j mrhjhuz epiy njhlh;e;J nfhz;bUg;gjhy; epahahkhd tprhuizia njhlq;f ,ayhj epiy Vw;gl;Ls;sJ.”
22 .Similar orders were given to the other petitioners as per Ex. M5 to Ex. M9. The Labour Court allowed the management to present witnesses, resulting in the examination of MW1 to MW4. However, despite this, in paragraph 20 of the impugned award, the Labour Court makes the following inexplicable finding:-
“kDjhuh;fspd; nra;if fhuzkhf mth;fSf;F Kjypy; fhuzk; NfhUk; mwptpg;G nfhLf;fg;gl;L> mjw;F mth;fs; tpsf;fk; nfhLj;J> mjw;F gpd;G kDjhuh;fs; jw;fhypf gzpePf;fk; nra;ag;gl;L> mjw;F gpd;G ,uz;lhtJ fhuzk; NfhUk; mwptpg;G nfhLf;fg;gl;L> mjw;F gpd;G kDjhuh;fs; gzpePff ; k;
nra;ggl;bUf;fpd;wdh;. kDjhuh;fs; xOq;fPd nray;fspy; <Lgl;l fhuzj;jpdhy; jhd; mth;fs;
gzpapypUe;J ePff ; k; nra;ag;gl;Ls;sdh; vd;gJ rhl;rpaq;fs; kw;Wk; Mtzq;fspypUe;J njhpfpd;wJ” https://www.mhc.tn.gov.in/judis 18 WP.No.2412 of 2003 This finding contradicts the absence of an initial inquiry, making the Labour Court’s conclusion difficult to reconcile with the facts presented.
23. The Labour Court failed to look into the certified standing orders applicable to the Management (Ex.M29) specifically Standing Order Nos. 28(1)(a) and 28(1)(c), which clearly outline the procedure for conducting an inquiry before imposing disciplinary actions:-
“28.1(a) Where a disciplinary proceeding against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are in progress and the Management is satisfied that it is necessary or desirable to place the workman under suspension pending enquiry, he may, by order in writing, suspend the workman with effect from such date as may be specified in the order. A statement setting out in detail the reasons for such suspension shall be supplied to the workman within a week from the date of suspension.
28.1(c) If, on the conclusion of the enquiry; or, as the case may be of the criminal proceedings, the workman has been found guilty of the charges framed against him and if an order of dismissal, discharge, break in service, suspension, demotion, stoppage of increment, fine censure or warning https://www.mhc.tn.gov.in/judis 19 WP.No.2412 of 2003 would meet the ends of justice, the Management shall pass an order accordingly, provided that when an order of dismissal is passed under this clause, the workman shall be deemed to have been dismissed with effect on and from the date of suspension pending enquiry and shall not be entitled to wage for such period; provided that when an order of suspension is passed as punishment under this clause, the period of suspension by way of punishment will be independent of the period of suspending pending enquiry.
“In case of awarding capital punishment of dismissal or discharge, a second show cause notice for the proposed punishment shall be given to the workmen to defend his case.”
24. Thus, it is evident that the certified standing orders at the management’s establishment mandate a formal inquiry process and do not permit dispensing with it. In such a case, when the management leads evidence directly before the Labour Court, then the satisfaction of such evidence is that of the Labour Court and not of the management. This position of law was well explained by the Hon'ble Supreme Court vide its decision in Union Bank of https://www.mhc.tn.gov.in/judis 20 WP.No.2412 of 2003 India v. Tamil Nadu Banks Deposit Collectors Union and another reported in 2007(12) SCC 585. It was observed in paragraph 8 as follows:-
“It is now well-settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited questions open to a Tribunal were domestic inquiry has been properly held (see Indian Iron & Steel Co., v. Their workmen [[1958]S.C.R. 667] but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s. Sasa Musa Sugar Works (P) Limited v., Shobrati Khan [[1959] Supp.s.C.R. 836], Phulbari Tea Estate v. Its Workmen and Punjab Nation Bank Limited v. Its workmen. There three cases were further considered by https://www.mhc.tn.gov.in/judis 21 WP.No.2412 of 2003 this court in Bharat Sugar Mills Limited v. Shri Jai Singh, and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha v. Belaund Sugar C. [[1954] L.A.C. 697]. It was pointed out that “the import effect of commission to hold an enquiry was merely this: that the Tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out:. It is true that three of these cases, except Phulbari Tea Estate’s case were on applications under Section 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the Tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Ta Estate’s was on a reference under s. 10, and the same principle was applied there also, the only difference being that in that case, there https://www.mhc.tn.gov.in/judis 22 WP.No.2412 of 2003 was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.” [Emphasis added]
25. The Labour Court failed to follow the Hon'ble Supreme Court's reasoning, neglecting to scrutinize the evidence presented and determine if it adequately justified the workmen’s dismissal. Instead, the Labour Court repeatedly noted that the management had issued two show-cause notices, obtained explanations from the workmen, and subsequently dismissed them after a period of suspension. It is unclear on what basis the Labour Court reached this conclusion. Rather than analyzing the evidence provided by the management, the Labour Court emphasized that the workmen had not brought forward external witnesses to corroborate their claims, despite there being no such requirement.
https://www.mhc.tn.gov.in/judis 23 WP.No.2412 of 2003
26. To cite an example, in paragraph 14 of the Impugned award, the Labour Court had recorded as follows:-
“kDjhuh;fs; jug;gpy; 2001 (2) vy;.vy;.vd;.gf;fk; 345> 1984(2) vy;.vy;.vd;. gf;fk; 27 Mfpatw;wpy; fz;Ls;s Kd;jhP g; G; fs; Rl;bf;fhl;lg;gl;lJ. Nkw;gb Kd;jhP g ; G; fis Nehf;Fk;NghJ mit ek; Kd;dh; cs;s ,e;j tof;F rq;fjpfSf;F Vw;wjhf njhpatpy;iy.
ep.rh.M.1> ep.rh.M.2 mwptpg;G nfhLf;fg;gl;lij
kDjhuh; jug;gpy; kWf;ftpy;iy. kDjhuh;fs;
vk;.vy;.vg;.rq;fj;ij rhh;ejth;fs; vd;W
Fwpg;gpl;Ls;sdh;. kDjhuh;fSf;F Mjuthf me;j
rq;fj;jpy; ,Ug;gth;fs; ahUk; rhl;rpahf tprhuiz nra;ag;gltpy;iy. njh.rh.1 mtuJ rhl;rpaj;jpy; 11.1.96 md;W NtiyepWj;jk; eilngw;w NghJ jhDk;
kw;w kDjhuh;fSk; mq;F ,Ue;jjhfTk;> uhk%h;j;jp vd;gth; rq;f nghWg;gpy; ,Ue;jhh; vd;Wk;> mtUk; me;j rkaj;jpy; mq;F ,Ue;jjhfTk;> 11.12.95 Kjy; 15.6.96 tiu jhDk; kw;w kDjhuh;fSk; rq;f nghWg;gpy;
,Ug;gth;fSk; fk;ngdpf;F jpdKk; te;J nrd;Nwhk;
vd;why; rhpjhd; vd;Wk; Fwpg;gpl;bUfpwhh;. vdNt kDjhuh;fs; jug;gpy; rpj;uhtpd; rhl;rpaj;ij Nehf;Fk;NghJ mth; gzPePff ; k; nra;ag;gl;ljw;F gpd;Gk; ep;h;thfj;jpw;F nrd;W te;Js;shh; vd;gJk;> rk;gtk; ele;jNghJ mq;F ,Ue;Js;shh; vd;gJk;> mNjNghy;
uhk%h;j;jp vd;gth; me;j ,lj;jpy; ,Ue;jjhfTk; xg;Gf; nfhz;L rhl;rpak; mspj;Js;sjhf njhpa tUfpd;wd.
mg;gbapUf;Fk; gl;rj;jpy; uhk%h;j;jp vd;gth; kDjhuh; https://www.mhc.tn.gov.in/judis 24 WP.No.2412 of 2003 jug;gpy; rhl;rpahf tprhhpf;fg;gl;bUf;fyhk;. Mdhy; mth; rhl;rpahf tprhhpf;fg;gltpy;iy. mth; rhl;rpahf tprhhpf;fg;glhjjw;Fk; ve;jtpjkhd fhuzq;fSk;
$wg;gltpy;iy. vdNt> kDjhuh;fs; jpdKk;
eph;thfj;jpw;F nrd;W njhopyhsh;fis kpul;bAs;sdh;
vd;gJk;> mjd; fhuzj;jpd; mbg;gilapy; jhd;
mth;fs; jw;fhypf gzpePf;fk; nra;ag;gl;L cs;sdh; vd;gJk; njhpfpd;wJ. NkYk;; ;eph;thfj;jpy; Rkhh; 600 Ngh;fs; gzpahw;wp tUfpd;wdh; vd;gJk;> mjpy; 90% ngz;fs; jhd; gzpahw;wp tUfpd;wdh; vd;gJk;> kDjhuh; kw;Wk; eph;thfj;jug;G rhl;rpaq;fspypUe;J njhpfpd;wJ. mg;gbapUf;Fk;NghJ kDjhuh;fs; kPJ kl;Lk; eltbf;if vLf;f Ntz;ba mtrpak; ,y;iy.
kDjhuh;fs; cz;ikapNyNa ,j;ijahd nray;fspy;
<Lgl;l fhuzj;jpdhy; jhd; mth;fs; kPJ Kiwg;gb
eltbf;if vLf;fg;gl;L> mth;fs; gzpePf;fk;
nra;ag;gl;Ls;sdh;.”
27. The workmen before the Labour Court and Petitioners herein were dismissed for the reason that they went on an illegal strike. However, mere participation in an illegal strike, the punishment of dismissal cannot be granted. The individual delinquency of a worker beyond their participation in the strike must be established by evidence. This position of law has been well established by the Hon'ble Supreme Court vide its decision in Gujarat Steel https://www.mhc.tn.gov.in/judis 25 WP.No.2412 of 2003 Tubes Ltd Vs Gujarat Steel Tubes Mazdoor Sabha reported in 1980 (2) SCC
593. It was held as under:-
“The cardinal distinction in our punitive jurisprudence between a commission of enquiry and a Court of Adjudication, between the cumulative causes of a calamity and the specific guilt of a particular person, is that speaking generally, we have rejected, as a nation, the theory of community guilt and collective punishment and instead that no man shall be punished except for his own guilt. Its reflection in the disciplinary jurisdiction is that no worker shall be dismissed save on proof of his individual delinquency. Blanket attainder of a bulk of citizens on any vicarious theory for the gross sins of some only, is easy to apply but obnoxious in principle. Here, the arbitrator has found the Sabha Leadership perverse, held that the strikers should have reasonable reported for work and concluded that the Management had, for survival, to make-do with new recruits. Therefore what?
What, at long last, is the answer to the only pertinent question in 6. a disciplinary proceeding viz. What is the specific misconduct against the particular workmen who is to lose his job and what is his punitive desert? Here you can’t https://www.mhc.tn.gov.in/judis 26 WP.No.2412 of 2003 generalise any more than a sessions judge can, by holding a faction responsible for a massacre, sentence every denizen of that factions village to death penalty. The legal error is fundamental, although lay instinct may not be outraged. What did worker A do? Did he join the strike or remain at home for fear of vengeance against blacklegs in a para
-violent situation? Life and limb are dearer than loyalty, to the common run of men, and discretion is the better part of valour. Surely, the Sabha complained of Management’s goondas and the latter sought police aid against the unruly core of strikers. In between, the ordinary rustic workmen might not have desired to be branded blacklegs or become martyrs and would not have reported for work. If not being heroic in daring to break through the strike cordon-illegal though the strike be-were misconduct, the conclusion would have been different. Not reporting for work does not lead to an irrebuttable presumption of active participation in the strike. More is needed to bring home the mens rea and that burden is on the prosecutor, to with the Management. Huddling together the eventful history of deteriorating industrial relations and perverse leadership of the Sabha is no charge against a single worker whose job is at stake on dismissal. What did he do? Even when lawyers did go on https://www.mhc.tn.gov.in/judis 27 WP.No.2412 of 2003 strike in the higher Courts or organize a boycott, legally or illegally, even top law officers of the Central Govt. did not attend court, argued Shri Tarkunde, and if they did not boycott but merely did not attend, could workers beneath the bread line be made of sterner stuff. There is force in this pragmatic approach. The strike being illegal is a non-issue at this level. The focus is on active participation. Mere absence, without more, may not compel the conclusion of involvement.”
28. Before it could be decided whether any individual delinquency was attributed to these five workmen herein and whether they were established by leading satisfactory evidence before the Labour Court, it must also be decided the conduct of the management in choosing to dismiss the workmen without holding any enquiry and choosing the time for dismissal. Admittedly, the workmen had belonged to a trade union and upon its call, the workmen of the Respondent establishment went on a strike. The five workmen before this court are also active participants in the union activities. When they were members of the Kovai Mavatta Engineering Thozhilalar Munnetra Sangam (MLF) (Regn:
878/CBE) on 05.10.1995, the union General Secretary wrote a letter to the https://www.mhc.tn.gov.in/judis 28 WP.No.2412 of 2003 management to recognize three workers as “protected workmen” in terms of Section 33 (3) of the I.D Act r/w Rule 65 of the Tamil Nadu Industrial Dispute Rules, 1958. The three workmen on whose behalf the letter was written were as follows: (1) President S. Sarojini (I.D. No. 4/97), (2) Secretary P.Malarvizhi (I.D.No. 270/97), (3) Treasurer K. Saraswathi (I.D. No. 268/97) Except Sarojini who settled her disputes, the other two are still Petitioners before this Court.
29. However, at that time settlement signed by the INTUC Union dated 19.01.1995 covering the wage issues was to expire on 31.12.1996. The MLF Union by their letter dated 20.11.1995 sent a charter of demands to the Labour Officer, Coimbatore and requested him to initiate conciliation on those demands. The workmen of the Respondent management went on strike from 11.12.1995. The fact that substantial workers were on strike can be seen from the muster roll produced for December 1995 (Ex.M22) and January 1996 (Ex.
M23). The management also imposed a wage cut of 8 days on the workers who had gone on strike from 11.12.1995 to 29.12.1995 vide their notice dated https://www.mhc.tn.gov.in/judis 29 WP.No.2412 of 2003 05.01.1996 (Ex. M2). The Joint Commissioner of Labour, Coimbatore gave advice dated 01.02.1996 (Ex. M37) asking the workers to give up the strike and go for a solution to the problem by negotiations and seek to achieve the demands through talks.
30. It is also seen that it was during the strike and when talks were going on before the Conciliation Officer, the management started giving show cause notices to the workmen, the first being on 22.12.1995 and the second on 31.01.1996. In between by an order dt. 31.01.1996, these five workmen along with the other two were placed under suspension. In the meanwhile, the Joint Commissioner of Labour, Coimbatore who was conducting the Conciliation Proceedings recorded its failure of conciliation and sent a report dated 04.06.1996 (Ex. M30) to the Government under Section 12(4) of the I.D. Act.
31. The management by then had claimed that the majority of the workers had returned to work. Notwithstanding the resumption of work of the workers, the management did not conduct any enquiry and was also not inclined to hold any enquiry during the period of their suspension. On the https://www.mhc.tn.gov.in/judis 30 WP.No.2412 of 2003 contrary, they were waiting for the conciliation to end and on receipt of the failure report dated 04.06.1996 (Ex. M30), they suddenly issued the orders of dismissal dated 15.06.1996 (Ex. M6 series to M.10 series). It was mainly because if during the conciliation any punishment had to be issued, it would attract the provisions of Section 33(1) (b) of the I.D. Act and they will have to seek express permission for their action from the Conciliation Officer. In such an event, the Conciliation Officer would have refused permission because of non-conducting of enquiry contrary to the standing orders. Even if they do not seek express permission for their action, their action would have been held to be void ab initio and the law had been clarified by the Hon'ble Supreme Court vide its decision in 2002 (2) SCC 244.
32. It was to avoid the embarrassment of any application being rejected under Section 33(1) (b), the management was waiting for the end of the conciliation which came about on 04.06.1996. Immediately, they came up with all the dismissal orders attributing serious acts of misconduct, but without holding any enquiry. It can be seen from the evidence of MW4 (N. Bhaskaran), General Manager of the management company that there was no https://www.mhc.tn.gov.in/judis 31 WP.No.2412 of 2003 material about any worker being returned from giving evidence and also that the suspended workers never came near the factory after their suspension. The relevant passages in this regard from the chief examination and cross- examination of MW4 are extracted below:
“22.12.95 vd;W #g;gh;itrh;fs; midtUk; vd;dplk;
te;J kDjhuh;fs; kPJ eltbf;if vLf;Fk;gb
$wpdhh;fs...... Kusp fpU\;zd; nfhLj;j Gfhh;
ep.rh.M 3..... fhuzk; NfhUk; mwptpg;Gfs; ep.rh.M 4 thpir ..... 6.NgUk; 11.01.1996 khiy 5 kzpastpy; ele;j rk;gtk; gw;wp vd;dplk; Gfhh; nfhLj;jhh;fs;.
me;j Gfhh; ep.rh.M 5.... mij njhlh;e;J me;j
rk;gtj;ijg; gw;wp #g;gh;itrh;fs;
nghpaehaf;fd;ghisak; fhty; epiyaj;jpy; Gfhh;
nra;jhh;fs;..... me;j Kjy; jftywpf;if efy; ep.rh.M.
17.... 11.01.96 md;W kDkjhuh;fSld; fdfuhI;
nIakzp MfpnahUk; ,e;j xOq;fPd nray;fspy;
<Lgl;lhh;fs;.
kDjhuh;fSf;F fhuzk; NfhUk; mwptpg;G mDg;gpNdhk;. me;j fhuzk; NfhUk; ;mwptpg;Gfs; ep.rh.M.5 thpir.
mjd; gpwF #g;gh;itrh;fSk; njhopyhsh;fSld;
Nrh;e;J te;jjhy; ehSf;F ehs; njhopyhsh;fspd;
tUif mjpfkhdJ. Mdhy; kDjhuh;fsJ xOq;fd P
nray;fs; njhlh;e;J nfhz;NlapUe;jJ. 22.12.95
Kjy; epiwa njhopyhhsh;fs; Ntiyf;F
jpUk;gpdhh;fs;.
https://www.mhc.tn.gov.in/judis
32
WP.No.2412 of 2003
fhuzk; NfhUk; mwptpg;GfSf;Fk; 22.09.96 md;Wjhd; gjpy; nfhLj;jhh;fs;. gjpy; jpUg;jpfukhf ,y;iy vd;gjhy; tprhuiz elj;j eph;thfk; Vw;ghL nra;jJ.
kDjhuh;fs; vg;gb vq;fSf;F vjpuhf rhl;rpak;
nrhy;thh;fs; vd;W ghh;j;JtpLNthk; vd;W kpul;;b kPzL; k; xKq;fPd nray;fspy; <Lghl;lhh;fs;. Mdhy; tprhuizf;F rhl;rpak; mspf;f ahUk; Kd;tutpy;iy.
jw;fhypf gzpePf;fk; nra;ag;gl;l gpd;G kDjhuh;fs;
Ntiyf;F tutpy;iy. mjw;F gpd;G ehd;
mth;fis ghh;ff
; tpy;iy.
tprhuizf;F KbT nra;jNghJ rhl;rpfs; ahh;
vd;gJk;> Mtzq;fs; vd;d vd;gJk; njhpAk;. eph;thf rhl;rpfis kpul;bajhf ahUk; Gfhh; nra;atpy;iy.
11.12.95 Kjy; fhuzk; NfhUk; mwptpg;G nfhLf;fg;gLk; tiuapy; kDjhuh;fs; xt;nthUtUk; Fwpg;ghf ve;nje;j eltbf;iffspy; <Lgl;lhh;fs; vd;W jdpahf Gfhh;
vJTk; ngwg;gltpy;iy. .... epiwaj; njhopyhsh;fs; vd;dplk; Gfhh; nra;jhh;fs; mth;fs; ahh; vd;W nrhy;yKbahJ.... 11.01.96 md;W mrk;ghtpjk; Fwpj;J vd;fF njhiynNgrp K:yk; jfty; te;jJ. ,uT vd; tPl;bw;F njhptpf;fg;gl;lJ.... cldbahf kWehs;
kDjhuh;fS;fF Fw;wr;rhl;L Fwpg;ghiz nfhLf;ftpy;iy... 11.01.96 md;W ele;j rk;gtk; gw;wp g]; Nghf;Ftuj;J epWtdj;jplk; ehd;
tprhhpf;ftpy;iy. rk;gtk; Fwpj;j Gfhh; Fwpj;J ehd;
njhopyhsh;fs; ahiuAk; tprhhpf;ftpy;iy...
tprhuizf;F KbT nra;jNghJ rhl;rpfs; ahh; ahh;
vd;gJk;> Mtzq;fs; vd;d vd;gJk; njhpAk;. eph;thf https://www.mhc.tn.gov.in/judis 33 WP.No.2412 of 2003 rhl;rpfis kpul;bajhf ahUk; Gfhh; nra;atpy;iy... rk;gtj;ij ehd; Neubahf ghh;f;ftpy;iy.”
33. However, contrary to the admission of MW4 regarding the threatening of witnesses by the workmen, in para 7 of the counter filed in all the I.Ds, the management had averred as follows:-
“The respondent management on receipt of the explanations submitted by the petitioner, was not satisfied with the explanation. Thereafter, when the management was considering initiating a domestic enquiry against the petitioner and others, the petitioner and her co-workers assembled before the factory gate then and there and threatened the women workers by saying “ahh; vq;fSf;F tpNuhjkhf rhl;rp nrhy;fpwhh;fs; vd;W ghh;ff ; pNwhk;. tprhuiz vg;gb elf;Fk; vd;W ghh;f;fpNwhk;.” In the circumstances, the respondent management had to dispense with the enquiry since the atmosphere which prevailed in the factory was not favourable for conducting the enquiry in a peaceful manner.”
34. As per the admission of MW4, substantial workers returned to work during February 1996 and there was no complaint of any threats of workmen if https://www.mhc.tn.gov.in/judis 34 WP.No.2412 of 2003 they deposed the enquiry, it was intentional for the management to state that the prevailing situation was not conducive for conducting a domestic enquiry and hence without an enquiry the five workmen were dismissed for serious charges. It will be clear that the management had waited only for the conciliation to be over on the charter of demands so that the burden of attraction of Section 33 would not be available for the workmen. In any event, these disputes were raised and taken up by the Labour Court in the year 1997 and the four witnesses of the management were examined only in October and December 1999 and in March and July 2000 i.e. after 4 years after the alleged incident. But all that the management could examine is only two supervisors and two managers and not a single co-worker. Therefore, even if the situation was not conducive in June 1996, the same situation cannot be pleaded during July 2000 when the trial before the Labour Court took place. In essence, the management did not lead evidence tendered by eyewitnesses and who are fellow workmen who had said to be threatened and abused by the petitioners/workmen. https://www.mhc.tn.gov.in/judis 35 WP.No.2412 of 2003
35. Since all five workmen were dismissed by orders dated 15.06.1996 (Ex. M6 series to M10 series) and as no enquiry was held before, the allegations contained in the dismissal order must be taken as the charge sheet. Since all the dismissal orders were identical, the charges as found in the order given to G. Chitra (Petitioner in I.D. No. 269/97) are taken and the charges are summarized below. It was alleged that she had left the work spot and was loitering here and there. Even after the superiors told her that she could not go outside the department, she challenged them by saying, “Do whatever you want”. On 11.12.1995, when the workers were attending to work, she told them that there would be a strike and they must also co-operate. She had with the connivance of 10 workmen gone on an illegal strike. She had conducted propaganda by stopping workers who were coming to work or who were going outside after duty. She questioned them “Hey, are you eating rice or something else?”
36. It was further stated in the dismissal order that she along with M/s. G. Jayprakash, P. Malavizhi, S. Sarojini, K. Jayamani, R. Kamaraj, A. Kanagaraj, S. Padma, K. Saraswathi and Sudalai Mani while indulging in https://www.mhc.tn.gov.in/judis 36 WP.No.2412 of 2003 illegal activities on 11.01.1996 around 5.00 p.m. went to the main gate in which the establishment along with the other sister establishment was situated and assembled there. In that crowd, there were also some outsiders. At that time, when the co-workers who were mostly women workers were coming out of duty told them “henceforth they should not go to work.” She also threatened them by stating, “You vile women, if any of you dare to come to work tomorrow, you will face dishonour and be burned alive”
37. At that time, a Cheran Transport bus going from Mettupalayam to Coimbatore came there and she threatened the driver and conductor of the bus stating “If you take this woman in this bus, we will break the bus and set fire to the same”. Likewise, when another bus was coming in that way, she similarly threatened the driver and conductor. When the policemen were on duty and advised her not to indulge in illegal activities, looking at them she shouted “What the court and police can do? They will arrest us and keep us in jail for 10 days. After getting released we will come back and take care”. https://www.mhc.tn.gov.in/judis 37 WP.No.2412 of 2003
38. Taking the last incident dated 11.01.1996 wherein the transport crew belonging to Cheran Transport was threatened (which was an incident that took place outside the establishment after working hours), the complaint to the police was lodged by one C.R Mohanraj, Supervisor of Shinewell Polishers Pvt. Ltd (where the petitioners are not working) against 12 persons including the five workmen. It was registered as Crime No. 25/96 by the Periyanaickenpalayam Police Station. In that complaint, the said Mohanraj, Supervisor concluded by saying “vdNt ngz;fisAk;> NgUe;JfisAk; gyte;jkhf jLj;Jk; ngz; Copah;fis khdgq;fg;gLj;Jk; tifapy; NgrpAk; rl;lg;gb mth;fs; nry;y chpikAs;s gzpf;F nrd;why; jP itj;J nfhSj;jptpLNthk; vd;W nrhy;ypa M.S. uhk%h;j;jp kw;Wk; mtUld; Nrh;e;jth;fs; kPJ eltbf;if vLf;FkhW jho;ikAld; Nfl;Lf; nfhs;fpNwd;.’”
39. The learned Counsel for the Petitioners filed a copy of the judgment rendered by Judicial Magistrate No.VI, Coimbatore in CC Case NO. 535/2000 dated 20.01.2004 (in the additional typed set) wherein all the accused were acquitted. Though this material was not available to the 1 st Respondent Labour Court, yet in the interest of justice this court looked into the document to find https://www.mhc.tn.gov.in/judis 38 WP.No.2412 of 2003 out the nature of the witnesses examined and the findings rendered by the trial court as this was the most serious charge levelled against the workmen.
40. Before the trial court, Murali Krishnan (MW1) was examined as PW3. In para12 of the trial court judgment, it was stated that the said Murali Krishnan along with five others have signed the complaint. The PW7 Kuppuraj, Driver and PW8 Nandagopal, Conductor became hostile witnesses. The Investigation Officer Damodharan said that the complaint was not given by four persons and only by Mohanraj. This creates doubt about the statement given by MW3.
41. The trial court in its judgment in para 18, 19 and another para also numbered 19 gave the following finding:-
“18. vdNt> nghJthd rhl;rpfSk;> jdpg;gl;l rhl;rpfSk; Kd;dplhjjhy;> ,g;gphptpd; fP*k; Mh;tKs;s rhl;rpfshf kl;LNk jPhk ; hdpf;f ,aYfpwJ vd;gjhf jPhk ; hdpf;fpNwd;.
19.mt;thNw ,.j.r.341> 353 ,.j.r. Mfpatw;wpd; fPo;
NgUe;jpy; Vw tplhky; jLj;jhh;fs; vd;gJ Fwpj;Jk;
m.rh. 1 Kjy; m.rh.6 tiuapyhd rhl;rpfis Mh;tKs;s> epWtdj;jpy; gzpGhpAk; rhl;rpak; kl;LNk NghJkhfhJ mUfhikapy; cs;s filapd; egh;fNs https://www.mhc.tn.gov.in/judis 39 WP.No.2412 of 2003 rhl;rpfs; $wpathW 200f;F Nkw;gl;l $bapUe;j egh;fspy; jdpg;gl;l rhl;rpak; Kd;dpltpy;iy vd;gJk; ,.j.r. 353 nghWj;jkl;by; Xl;LdiuAk;> elj;JdiuAk; jhd; vjphpfs; NgUe;jpy; Vw;wp nrd;why; jP itj;J nfhSj;jp tpLtjhf kpul;bajhf ,Uf;Fk;NghJ me;j Xl;Leh;> elj;Jdh; gpwo;e;Js;sjhYk;> m.rh.1 Kjy;m.rh. 9 tiuahd rhl;rpfs; md;Nw rk;gt Njjpapy;
fk;ngdpapy; Ntiy nra;jhh;fsh vd;gJ Fwpj;j gjpNtL VJk; Kd;dpdlhjJk;> rk;gtk; ele;jNghJ ,Ue;jjhf $wg;gLk; ghJfhg;ghf;fhd NghyP]; tprhhpf;fg;glhjJk; ,ttof;fpw;F Fe;jfj;ij Vw;gLj;jp> Vw;fdNt gzp ePff ; k; nra;ag;gl;l vjphpfis miyfbf;Fk;
Nehf;fj;Jld; ngha;ahf Gfhh; nfhLf;ff;$ba re;jh;g;gk; cs;sjhfTk; mjw;F Vw;w tifapy; rhl;rpaq;fs;
mike;jpUg;gjhf fhz;fpNwd;.
19. ,.j.r. 506 (2) gphptpd; fPo; capUf;F Mgj;J Vw;gl;Ls;sjhd mr;rk; cs;sjhf mjw;F ghJfhg;G Ntz;Lk; vd;gjhf Gfhhpy; Fwpg;gplhjJk; mt;thW nfhiy ntwpAld; nray;gl;lhh; vd;gJ Fwpj;J $wf;$ba 7 vd;gJ Fwpj;J $wf;$ba 7>8 rhl;rpfs;
gpwo;e;Js;sjhy; ,g;gphptpd; fPo; cs;s Fw;wr;rhl;L Iaj;jpw;fplkd;wp nka;gg ; pf;fg;gltpy;iy vd;gjhf fhz;fpNwd;.”
42. Even though the said Mohanraj (MW3) Supervisor was the complainant before the police, that complaint was given on 11.01.1996. He gave another complaint on 12.01.1996 to the management on similar lines https://www.mhc.tn.gov.in/judis 40 WP.No.2412 of 2003 marked as Ex. M4. In the original document, there is no endorsement that management was initiating action against those persons who were responsible for the incident dated 11.01.1996. Even in the show cause notice dated 31.01.1996 issued to the workmen, there is no reference to whether the management has received a written complaint from the supervisors in Ex. M4. The said Mohanraj was a supervisor of another company and did not belong to the Respondent's management company. The complaint in Ex. M4, there is a mention of 9 workers. But the show cause notice on this allegation was issued only to 7 workers including the five petitioners herein. Though the names of M.S. Ramamurthi and G. Jayaprakash were mentioned in that complaint, no action was initiated by the management.
43. The said witness MW3 Mohanraj, in his cross-examination, gave the following answers to specific questions that can be culled out from his depositions:-
“rk;gt rkaj;jpy; me;j ,lj;jpy; rkhh; 150 Ngh; ,Ue;jpUg;ghh;fs;... eph;thfj;jplk; nfhLj;j Gfhhpy; njhopw;rq;fj; jiyth; uhk%h;j;jp rk;gtj;jpy;
<Lgl;ljhf cs;sJ. Mdhy; tpgukhff;
https://www.mhc.tn.gov.in/judis 41 WP.No.2412 of 2003 Fwpg;gpltpy;iy... ep.rh.M.4y; fz;Ls;s egh;fs; NgUe;J njhopyhsh;fis kpul;bdhh;fs;.
mjpy; ahh; ahh; ahiu kpul;bdhh;fs; vd;W Fwpg;ghf ,y;iy. vy;NyhUk; Nrh;e;J kpul;bajhff;
Fwpg;gplg;gl;Ls;sJ.
ehd; nfhLj;j Gfhhpy; Ntiyf;F te;j njhopyhsh;fs; jLj;jjhff; Fwpg;gpltpy;iy.” Though the said witness was appointed as a Supervisor, after the strike he was made the Technical Manager as evidenced form Ex. M18.
44. Let us examine how the other three witnesses spoke about the said incident allegedly took place on 11.01.1996. Murali Krishnan (MW1) a Supervisor, in his cross-examination said the following:-
“me;jg; Gfhh; 6 #g;gh;itrh;fs; vOjpf; nfhLj;Njhk;.
mJ vOjpaJ ahh; vd;W Qhgfkpy;iy. 11.12.95 & 11.01.96 Njjpapy;; ele;jjhff; $wg;gLk; rk;gtq;fs;
Fwpj;J eph;thfj;jplk; Gfhh;fs; nfhLj;j NghjpYk;
cldbahf eltbf;if vLf;fhjjw;Ff; fhuzk;
njhpahJ.... mg;NghJ Nfl;Lf;F ntspNa vk;.vy;.vg;. njhopw;rq;fj;ijr; Nrh;e;j uh%h;jj ; pAk;> ];Nlf;fpy; rpj;uh> kyh;tpop> gj;kh> rNuh[pdp> n[akzp kw;Wk; rpy njhopyhsh;fis ntspNa epd;W nfhz;bUe;jhh;fs;.
vq;fSf;Fg; gpd;dhy; Ntiynra;J ntspNate;j https://www.mhc.tn.gov.in/judis 42 WP.No.2412 of 2003 njhopyhsh;fis nfl;lthh;j;ijfshy; jpl;bdhh;fs;. jpl;b kpul;bdhh;fs;.
..... ehq;fs; 6 NgUk; nghpaehaf;fd;ghisaj;jpYs;s NghyP]; epiyaj;jpy; Gfhh; nfhLj;Njhk;... Gfhhpy; ,e;jj; njhopyhspiaj; jpl;bdhh;fs; vd;W Fwp;g;ghf ngah; Fwpg;gpl;L vOjtpy;iy.... 5>6 Ngh;fSk; xd;whfg; Ngha; g];i] epWj;jpdhh;fs;. ahh; Ngha; nra;jhh;fs; vd;W Fwpg;ghf nrhy;y KbahJ. ahh; Ngrpdhh;fs; vd;W Fwpg;ghf Gfhhpy; nfhLf;fg;ltpy;iy.... 11.01.96f;F Kd;G njhopw;rhiyapy; KOikahd cw;gj;jp ,y;iy vd;why;
rhpNa.... 02.02.96f;Fg; gpwF KOikahd cw;gj;jp
,Ue;jJ. mjw;Fg; gpwF ve;jtpjkhd mrk;ghtpj
rk;gtKk; elf;ftpy;iy vd;why; rhpNa.”
45. Further, Hariharasudha (MW2) was a Supervisor, in his deposition, both the chief and cross said the following:-
“11.1.96 md;W kjpak; Rkhh; 5 kzpf;F ehq;fs; Ntiyia Kbj;Jtpl;L ntspNa te;Njhk;. ehd; Kusp fpU\;zd;> Nkhfd;;uh[;> tp[aFkhh;> Nrfud;> uhN[\;
MfpNahh; te;Njhk;. mg;NghJ vd;Dld;
njhopyhsh;fs; vy;NyhUk; Ntiy Kbj;J te;jhh;fs;.
mg;NghJ Nfl;Lf;F ntspapy; kDjhuh;fs; vk;.vy;.vg;. rq;fj;ij Nrh;e;j uhk%h;j;jp MfpNahh; kw;Wk; rpy njhopyhsh;fs; epd;W nfhz;bUe;jhh;fs;. ehq;fs; Nfl;bypUe;J tUk;NghJ Nfl;by; epd;W nfhz;bUe;j kDjhuh;fs;; njhopyhsh;fis ghh;j;J kpfTk; NKhrkhd thh;j;ijfis nrhy;yp jP itj;J nfhSj;jp tpLNthk;
https://www.mhc.tn.gov.in/judis 43 WP.No.2412 of 2003 vd;W nrhd;dhh;fs;.... MfNt ehq;fs; 6 NgUk; Nrh;e;J nghpaehaf;fd;ghisj;jpy; Ngha; NghyP]; epiyaj;jpy; Nkhfd;uh[; vOj;J %yk; Gfhh; nfhLj;jhh;fs;. mth;
vg;.I.Mh; nfhLj;jhh;fs;. mLj;j ehs;
njhopw;rhiyf;Fg; NghNdd;. 6 #g;gh;itrh;fSk;
Nrh;e;J fk;ngdpf;F xU Gfhh; vOjpf; nfhLj;Njhk;.
md;W khiy Rkhh; 5.00 kzpastpy;
fk;ngdpia tpl;L ntspNa te;Njd;.... mth;fs; Ntiy Kbe;J tUk; njhopyhsh;fis ghh;jJ ; Nkhrkhf jpl;bdhh;fs;. Fwpg;ghf ahh; ahiu ghh;j;J jpl;bdhh;fs; vd;gJ njhpahJ. kDjhuh;fis jtpu kw;w egh;fs; kPJ eph;thfk; eltbf;if vLj;jjh vd;gJ vdf;F njhpahJ.... 12.1.96 md;W ehq;fs; Gfhh; nfhLf;ftpy;iy vd;why; rhpay;y. eph;thfk; clNd Vd; eltbf;if vLf;ftpy;iy vd;W vdf;F njhpahJ.”
46. A perusal of the evidence recorded, both oral and documentary will show several contradictions which will lead to the conclusion that the allegations relating to the incident held outside the establishment and after working hours relating to the two buses involving Cheran Transport Corporation is unbelievable. Though the witnesses said all 6 supervisors gave the complaint to the police, the FIR registered by the police (Ex.M17) refers to only the complaint given by Mohanraj (MW3) who was examined in the trial https://www.mhc.tn.gov.in/judis 44 WP.No.2412 of 2003 court as PW1. The written complaint to the Manager (MW4) and marked as Ex. M4 was signed by all the 6 persons.
47. Even after receiving a written complaint, the Manager MW4 did not take any action immediately and it was only in the show cause notice given on 31.01.1996 (Ex. M6 to Ex. M10 series) which was the second show cause notice given after 20 days after the incident creates doubt in our minds. It means the management waited for the strike to fizzle out and picked up ring leaders to lead the strike were specially charged with yet another misconduct. Even doing so, out of the 10 names mentioned in the complaint in Ex. M4, chargesheets were given only against 7 and the leader of the union Ramamurthi whose name figures in all the depositions and one Jayaprakash were not proceeded with. This will show there is a clear case of pick and choose of targeting the activists of the union for punishment.
48. Even the witnesses did not mention the actual words used during the threat allegedly held out by these petitioners and they could also not name anyone of the workers who were present in the crowd which allegedly consisted https://www.mhc.tn.gov.in/judis 45 WP.No.2412 of 2003 of around 150 to 300 workers. The witness MW4 fairly admitted that he did not contact Cheran Transport Corporation and also enquired with the drivers and conductors of the two buses. Though the judgment of the criminal court in CC No.535/2000 dt. 21.01.2004 was not available for the Labour Court, this being the most serious charge in the interest of justice the said judgment produced now could be taken note of for two reasons. One, the driver and conductor who were examined as PW7 and PW8 did not stick to the prosecution version and became hostile. The trial court considered the version of the supervisors (Mohanraj (MW3), Murali Krishnan (MW1) and Rajesh) who were examined as PW1, PW3 and PW4 were disbelieved and were labelled as interested witnesses. All the 12 witnesses including the 5 petitioners herein were acquitted by the learned Judicial Magistrate VI, Coimbatore. In the absence of any credible witness to support the charges and the management not having initiated action immediately upon the receipt of the complaint, even though there was near normalcy from February to June 1996, the management had dismissed them without conducting enquiry raising serious doubts. MW4 also stated that he had not received any complaints from https://www.mhc.tn.gov.in/judis 46 WP.No.2412 of 2003 any workers in this regard. Therefore, the first Respondent Labour Court had erred in holding paragraph No.13. The finding which is extracted below is perverse and contrary to the material on record:-
“eph;thfj;jpd; jug;gpy; tprhhpf;fg;gl;l midj;J rhl;rpfSk; kDjhuh;fs; ngz; njhopyhsh;fis kpfTk; Nkhrkhd thh;j;ijfshy; jpl;bajhfTk;> khdgq;fk;
nra;JtpLtjhf $wpajhfTk;> mNjNghy; NgUe;J
Xl;Leh;> elj;JeiuAk; kpul;bajhfTk;> NgUe;ij
cilj;J> jP itj;J tpLtjhf $wpajhfTk;>
NghyP];fhuh;fis myl;rpag;gLj;jp NgrpajhfTk;
$wpapUf;fpwhh;fs;. mg;gbapUf;Fk; gl;rj;jpy; Nkw;gb
Kd;jhP g
; G
; fspd; mbg;gilapy; ghh;f;Fk;NghJ
kDjhuh;fSila nra;if jtwhdJ vd;gJ
njhpfpd;wJ.”
49. The Labour Court did not even understand the real import of the charges levelled against the workmen. Neither the dismissal order nor the evidence recorded ever disclosed any individual overt act attributed to the petitioners herein. Therefore, no individual responsibility can be fixed on each of the petitioners. Further, what raises doubt is that of the 7 workmen who were dismissed and disputes raised before the Labour Court comprised of six women workers (one alone being a man, A. Kanakaraj (ID No. 266/97), it is https://www.mhc.tn.gov.in/judis 47 WP.No.2412 of 2003 unthinkable how these women would have shouted against the other workers who were predominantly women that they would be dishonoured by them. Not only such an allegation is unbelievable and one cannot expect a woman to tell another woman that she will be dishonoured even if it comes considering that they had used abusive or threatening words. The action of the management lacks imagination. Further, when MW4 was cross-examined, he did not give any satisfactory explanation as to why Ramamurthi, a worker cum leader and Jayaprakash who were found to be in the same crowd of 10 workers no action initiated against them for the very same misconduct. It must be noted that their names were mentioned in the FIR (Ex.M17) by MW3 and also in complaint dt.
12.01.1996 (Ex.M4). Hence the charge relating to incident dt. 11.01.1996 said to have taken place at 5.00 p.m. outside the gate of the factory is unbelievable.
50. The other charge which is common to all the 5 workers was that on 11.12.1995 they had threatened other workers to go on strike and they forcibly stopped the workers who were coming to work or going back after their work and also abused them as to whether they were eating rice or anything else. The charge sheet referred to the names of the 10 workers including the 5 petitioners.
https://www.mhc.tn.gov.in/judis 48 WP.No.2412 of 2003 It is seen from the records that Murali Krishnan (MW1) had given a complaint dated 23.12.1995 (Ex. M3) which was the first complaint. The complaint though dated 23.12.1996 refers to the incidents held 15 days before the date of complaint.
51. It is found that the Ex.M3 complaint was not written by the said witness as he does not know how to write in Tamil and it was written by one worker Suguna. This fact was not mentioned in the complaint. About the allegation against G. Chitra about her not giving full production on 08.12.1995, the witness MW1 admitted that in his complaint he did not mention the same. Though the said witness MW1in his written complaint in Ex. M3 stated that after his advice, Chitra went back to her department, in the chief examination he had stated as follows:-
“11.12.95 Kjy;; jhq;fs; N ; tiy epWj;jj;jpy; <Lgl Ntz;Lk; vd;W J}z;b ; f; nfhz;L ,Ue;jhh;fs;. ehd; mth;fsplk; nra;jJ jtW vd;Wk; mtuth; Ntiyia Kbf;Fk;gb nrhd;Ndd;. mt;thW nra;ahtpl;lhy; cw;gj;jp ghjpf;Fk; vd;W nrhy;yp Ntiy nra;a nrhd;Ndd;. mjw;F mth;fs; ehq;fs; mg;gb nra;Nthk;
ahhplk; Ngha; nrhy;ypf; nfhs;Sq;fs; vd;W https://www.mhc.tn.gov.in/judis 49 WP.No.2412 of 2003 nrhd;dhh;fs;. gpwF kw;w bg;ghh;ln ; kz;Lf;Fg; Ngha; 11.12.195ypUe;J ];biuf; nra;a Ntz;Lk; vd;W J}z;btpl;lhh;fs;.”
52. But the fact such an attribution of retaliatory words used by Chitra was not mentioned in Ex. M3 complaint given by him. This was admitted in cross-examination which is as follows:-
“vk;.3y; ehd; rpj;uhtplk; nrhd;djw;F jpUg;gp gjpy; nrhd;djhf gjpy; nrhy;ytpy;iy vd;why; rhpNa.” In the complaint dated 23.12.1995 (Ex. M3), the witness MW1 mentioned the names of Chitra, Sarojini, Malarvizhi and S. Padma, but did not mention the name of Jayamani. In cross-examination, he had stated as follows:-
“n[akzp> gj;kh MfpNahiu Fwpj;J vk;.3y; 23.12.1995 Gfhhpy; Fwpg;gpltpy;iy vd;why; gj;khitg; gw;wp Fwpg;gpl;L ,Uf;fpNwd;. kw;wth;fisg; gw;wp nrhy;ytpy;iy. 8k; Njjp rk;gtk; 11k; Njjp rk;gtk; kyh;tpop> ru];tjp MfpNahiug; gw;wp ehd; Gfhhpy; Fwpf;ftpy;iy vd;why; mJ gw;wp ghh;j;Jjhd; nrhy;y Ntz;Lk;.”
53. Relating to the incident dt. 08.12.1995, the management’s second witness MW2 Hariharasudha gave a complaint allegedly on 23.12.1995. In that https://www.mhc.tn.gov.in/judis 50 WP.No.2412 of 2003 complaint, he had mentioned Saraswathi (I.D.No. 268/97) leaving her work section and going to other sections and instigating them to go on strike on 08.12.1995. There is no explanation given it took 15 days for him to write a complaint. On the contrary, he gave a reason which can never be acceptable in his chief examination and it is as follows:-
“.... mij ghh;j;J ehd; ;vd;Dila Nky; mjpfhhpaplk;
Gfhh; nrhd;Ndd;. mjw;F 9k; Njjp 10k; Njjp rdp
QhapW njhopw;rhiy yPT. 11k; ypUe;J 14k; Njjp
tiu ehd; rghpkiyf;F Ngha;tpl;Nld;. mjdhy;
Ntiyf;F Nghftpy;iy. ehd; 15k; Ntiyf;F te;Njd;.
ehd; Ntiyf;F tUk;NghJ Nfl;Lf;F ntspapy; kDjhuUk;
,d;Dk; rpyUk; epd;Wnfhz;L Ntiyf;F te;J
nfhz;bUe;j njhopyhsh;fs; ghh;j;J nuhk;g Nkhrkhf
jpl;lhh;. ePqfs; vy;NyhUk; Nrhj;ijjhd; rhg;gpLfpwPhf; sh ,y;iy NtW vijahtJ rhg;gpLfpwPh;fsh vd;W Nfl;lhh;. mth;fis jLj;jhh;. Gpd; Nkyhsiu ghh;j;J ntspapy; ele;j tp\aj;ij tha;nkhopahf nrhd;Ndd;. Ntiyf;F cs;Ns te;j njhopyhsh;fs; tha;nkhopahf ,J gw;wp nrhd;dhh;fs;. ,J khjphp 22k; Njjp tiu ,Ue;jJ. gpwF NkNd[iu ghhj;J ,th;fs; njhlh;e;J Ntiyf;F tUk; njhopyhsh;fis jLg;gjhy; cs;Ns tUgth;fs; vg;gb tUthh;fs; vd;W nrhd;Ndd;. Mjyhy; mth;fs; kPJ VjhtJ eltbf;if vLf;f Ntz;Lk; vd;W nrhd;Ndd;. mjw;F mth; tha;nkhopahf Gfhh; nfhLj;jhy; NghjhJ vOj;J %yk; nfhLf;f nrhd;dhh;. mjw;F gpwF kjpak;
https://www.mhc.tn.gov.in/judis 51 WP.No.2412 of 2003 njhopw;rhiyapy; ,Ue;J NkNd[h; ntspapy; Ngha;tpl;lhh;.
ehd; 3.30 kzpf;F xU Gfhh; vOjpNdd;. NkNd[h; njhopw;rhiyapy; ,y;yhjjhy; mLj;j ehs; nfhLf;fyhk; vd;W 23.12.1995 Njjp Nghl;L vOjpNdd;. Mdhy; gzp Kbe;J Nghtjw;F Kd;Ng NkNd[h; ghf;lhpf;Fs; te;J tpl;ljhy; mg;NghNjNa Gfhih nfhLj;J tplyhk; vd;W Gfhh; vLj;Jf; nfhz;L NghdNdd;. topapy; #g;guitrh;
Kusp fpU\;zid ghh;j;Njd;. mth; jhd; 8k; Njjp rk;gtk; Fwpj;J ntspapy; rk;gtk; ele;j rk;gtk; Fwpj;J ehDk; NkNd[hplk; ,g;NghJ jhd; nfhLj;Njd; vd;W $wpNdd;. ehDk; me;j Gfhhiu Njjp khw;whky; 22k; Njjp nfhLj;Njd;. me;j Gfhh; vz;. 14.
54. In the cross-examination, he further stated as follows:-
“23.12.95 Njjpapl;l Gfhih eph;thfj;jplk; 22.12.95 fk;ngdpapd; Nkyhshplk; khiy 5 kzpf;F nfhLj;J tpl;Nld;. 22k; NjjpNa nfhLj;jw;F mjpy; ve;j Fwpg;Gk; ,y;iy. ehd; Neubahf mthplk; nfhLj;J tpl;Nld;.”
55. Therefore, the witness was not sure about the date on which the written complaint was made. As regards the issue that the allotted work to Saraswathi on 08.12.1995, the witness in his chief examination stated as follows:-
“...08.12.95k; Njjp ele;jJ. me;j Njjpapy; fhiy 8 kzpf;F ehd; ghf;lhpapy; ghl;lk; gphptpy;
https://www.mhc.tn.gov.in/judis 52 WP.No.2412 of 2003 njhopyhsh;fSf;F xh;f; myhl; nra;Njd;. mg;NghJ kDjhuh; ru];tjpAk; me;j Ntiyapy; ,Ue;jhh;. mtUf;Fk; Ntiy myhl; nra;Njd;. ehd; Ntiy
xJf;fPL nra;j gpwF Rj;jp ghh;j;Jtpl;L 1 kzp fopj;J te;F ehd; nfhLj;j Ntiy vg;gb Kbe;jpUf;fpwJ vd;W ghh;jj ; NghJ ru];tjp; mth;fs; Ntiy ,lj;jpy; ,y;iy. kp\pd; epd;W ,Ue;jJ.”
56. However, in his cross-examination, he had stated that such work allotment and that Saraswathi went out of the factory was not mentioned in his written complaint in Ex. M14. He had stated as follows:
“ .... kDjhhuh; ru];tjpf;F ghl;lk; gphptpy; Ntiy nfhLj;jjhf 23.12.1995y; Njjpapl;l Gfhhpy; kDjhuh; ru];tjpf;F ghl;lk; ghptpy; 08.12.1995y; gzp xJf;fPL nra;jjhf $wg;gltpy;iy vd;why; rhpNa. kDjhuh;
ru];tjp njhopw;rhiyia tpl;L ntspNa Nghdjhf
nrhy;ytpy;iy. mtuJ gphpit tpl;L kw;w gphpTf;F
Nghdjhfj;jhd; nrhy;ypapUf;fpNwd;. mth;
ghf;lhpapypUe;J ntspNawp miye;J jphpe;J
nfhz;bUf;fpwhh; vd;W vk;. 14y; nrhy;ytpy;iy vd;why; rhpNa.”
57. He further stated:-
“mth; ve;j njhopyhshpAld; Ngrpf; nfhz;L ,Ue;jhh;
vd;Wk; mjpy; nrhy;ytpy;iy. ehd; Kjy; https://www.mhc.tn.gov.in/judis 53 WP.No.2412 of 2003 tprhuizapy; ,d;ndhU gphptpy; Ntiy nra;J nfhz;bUe;j njhopyhsh;fs; eLtpy; Ngrpf;; nfhz;bUe;jhh; vd;W nrhy;ypapUf;fpNwd;. mth;fs; ngah;; ,g;NghJ nrhy;y KbahJ. mq;fpUe;J NtW
gphpTf;F Nghdjhf vk;. 14 nrhy;ytpy;iy vd;why; rhpNa. ehd; me;j gphptpy; Ngha; Nfl;l NghJ ehd; mg;gb jhd; nra;Ntd; ePq;fs; vd;d Ntz;LkhdhYk;
nra;J nfhs;Sq;fs; vd;W ru];tjp nrhd;djhf vk;.14y; nrhy;ytpy;iy vd;why; rhpNa.”
58. As to the role of Saraswathi, the witness MW2 had admitted as follows:-
“me;j ,lj;jpy; kp\pDk; Mg; Mfp ,Ue;jJ. kDjhuh;
kp\pid epWj;jptpl;L ntspNa NghdJ vdf;F Neubahf njhpahJ ..... mt;thW rk;gtk; ele;jpUe;jhy;
kw;w njhopyhsh;fs; ngah;fSk; Nrh;ff
; g;gl;bUf;Fk;
vd;why; rhpay;y. epiwa Ngh;fs; ,Ue;jjhy; ngah;fs; Fwpf;ftpy;iy. me;j njhopyhsh;fs; Ntiy nra;J nfhz;bUe;jhh;fs;. kDjhuh; eLtpy; epd;W Ngrpf;
nfhz;bUe;jhh;. NtW mrk;ghtpj rk;gtk;
elf;ftpy;iy..... 11.12.95 kDjhuh; ru];tjp Neubahf
Ntiy epWj;jj;jpy; <Lgl;lJ gw;wp vdf;F njhpahJ vd;why; mjw;F gpwFk; njhlh;e;J ele;J te;jjhy; mJ gw;wp vk; 14 y; nrhy;ypapUf;fpNwd;. vk; 14 Gfhhpy; ru];tjp gw;wp jhd; Fwpg;ghf nrhy;ypapUf;fpNwd;. kw;w kDjhuh;fs; gw;wpNah njhopyhsh;fs; gw;wpNah nrhy;ytpy;iynad;why; rhpNa.” https://www.mhc.tn.gov.in/judis 54 WP.No.2412 of 2003
59. Even concerning other workers who were present and indulged in similar acts of abuse and threat, the witness could not name anybody else. In his cross-examination he stated as follows;-
“ve;j njhopyhsp jfhj thh;j;ijfshy; Ngrpdhh;
vd;W Fwpg;ghf nrhy;y KbahJ. mt;thW
kDjhuh;fNsh NtW njhopyhsh;fNsh mt;thW
$g;gpl;L ahiuAk; Ngrtpy;iy vd;Wk; mk;khjphp
rk;gtk; elf;ftpy;iy vd;W nrhd;dhy; rhpay;y ; .
,d;d njhopyhsh;fis mth;fs; kpul;bdhh;fs; vd;W njhpahJ. epiwa njhopyhsh;fs; nrhd;dhh;fs;.
Fwpg;ghf nrhy;y KbahJ. Fwpg;ghf milahsk;
nrhy;yKbahJ.”
60. The allegation that workers went from one section to another section without permission and instigated workers of the other section to go on strike is not that easy to perform. Since the management is dealing with diamond cutting and polishing and it involves security risk, it had made elaborate arrangements to keep the workers in different sections and monitor them constantly about their work. The witness MW1 Murali Krishnan, in his cross- examination elaborately said about the working of the different sections and the monitoring of workers as follows:-
https://www.mhc.tn.gov.in/judis 55 WP.No.2412 of 2003 “];lhl;bq; ghptpy; 15 Nki[ ,Uf;fpwJ vd;why; rhpNa. Xt;nthU Nki[f;F ,uz;L njhopyhsh;fs; ,Ug;ghh;fs; vd;why; rhpay;y. Nlgpy; ePskhf Nghl;bUf;Fk;. xt;nthU NlgpspYk; xt;nthU njhopyhsp cl;fhh;e;J ,Ug;ghh;. gpf;rpq; gphptpy; mNjNghy; ,Uf;fpwJ vd;why; mJ jdp miwahFk;. ];lhl;bq; gphpTf;Fk; gpf;rpq; gphptpf;Fk; ,ilNa NtW xU jdp miw ,Uf;fpwJ. me;j miwapy; jhd; GNuhnlf;\d; NkNd[h; kw;Wk; kw;w mjpfhhpfs; ,Ug;ghh;fs; vd;why; rhpNa. me;j miwapy; ,Ue;J ghh;j;jhy; ,uz;L gphptpYk;
njhopyhsh;fs; Ntiy nra;tij ghh;ff ; KbAk;
vd;why; rhpNa. ,uz;L gphptTfspYk; cs;s
njhopyhsh;fs; rhptu Ntiy nra;fpwhh;fsh vd;W
ghh;ff
; khdpl;lh;fs; ,Uf;fpwhh;fs; vd;why; rhpNa.
Xt;nthU njhopyhsp jdf;F Ntz;ba
%yg;nghUl;fis fz;l;Nuhy; &kpy; Ngha; ifnaOj;Jg; Nghl;L ngw;W te;j gpwFjhd; Ntiy nra;ag;gLk; vd;why; rhpNa. Xt;nthU njhopyhspAk; mtuth;fs;
nra;JtUk; Ntiyiaj;jhd; nra;J tUthh;fs;. Ntiy Kbj;Jtpl;L NghFk;NghJ fz;l;Nuhy; &kpy; Ngha; fzf;F nfhLf;f Ntz;Lk; vd;why; rhpNa.
Xt;nthU njhopyhspAk; jpdrhp vd;d Ntiy nra;fpwhh; vd;gJ Fwpj;J khdpl;lh; eph;thf mjpfhhpf;F Fwpj;Jf; nfhLg;ghh;. rk;gtk; ele;jjhf $wg;gLk;
Njjpfspy; gpNuhkh vd;w khdpl;lh; vd;gth; ,Ue;jhh;. ];lhl;bq; kw;Wk; gpf;rpq; Ntiy jdpj;jdp Ntiyahdhy; XNu miwapy;jhd; elf;Fk;. mjdhy; XNu khdpl;lh;jhd;. me;jj; Njjpfspy; ahh; mq;F te;J Ntiy nra;jpUg;ghh;fs; vd;gJ Fwpj;J Mtzq;fs;
https://www.mhc.tn.gov.in/judis 56 WP.No.2412 of 2003 ,Uf;fpwJ. Xt;nthU njhopyhspf;Fk; vj;jid fw;fs;
ghyp\; nra;J nfhLf;f Ntz;Lk; gpf;]; nra;J nfhLf;f Ntz;Lk; vd;w fzf;F ,Uf;fpwJ vd;why; rhpNa. 07.12.95 Njjpapy; rhbak; njhopw;rhiyapy; vd;d jfuhW ele;jJ vd;gJ Fwpj;J mLj;j ehs;jhd;
njhpAk;. me;j Njjpap Mdhy; rk;ge;jg;gl;l
njhopyhspAk; mq;Fjhd; Ntiy nra;J
nfhz;bUe;jhh;fs;. mth;fsplk; me;j rk;gtk; Fwpj;J ehd; Ngrtpy;iy.”
61. In the present dispute there were only two basic complaints received by the management. Ex.M3 dated 23.12.1995 was given by Murali Krishnan (MW1), Ex. M14 dated 23.12.1995 was given by G. Hariharasudha (MW2) and the authors of the two complaints were examined as witnesses. The management had given two show cause notices to the workmen and later a final dismissal order containing several charges. Admittedly, no enquiry was held in respect of those charges. However, the allegations contained in the show cause notices and the dismissal orders contained more allegations than what was found in these two basic complaints which gave rise to the disciplinary action initiated.
https://www.mhc.tn.gov.in/judis 57 WP.No.2412 of 2003
62. As noted already, the two basic complaints were hopelessly delayed and were taken after 15 days of the incident with no explanation for the delay. Further, the authors of the complaint themselves were unable to explain the expanded allegations and could not pinpoint the individual role played by the petitioners in committing the misconduct alleged against them. Further, the so- called abusive words were not explained clearly and what was put in the show cause memo was not vouchsafed by the witnesses in their evidence. They were unable to say which of the witnesses used such a language and against which of the workers they were used. It is impossible that the workers would have gone on an en masse strike just at the call of these five workers who were also women workers. The attendance register in Ex. M23 and Ex. M24 for December 1995 and January 1996 clearly show that substantial workmen have struck work. Whether the strike was legal or illegal is not an issue before this court. On the other hand, even if it was a case of workers going on a legal strike, that by itself cannot give a cause of action for the dismissal of the workmen. As held in the Gujarat Steel Tubes case (cited supra), the https://www.mhc.tn.gov.in/judis 58 WP.No.2412 of 2003 management will have to establish individual misconduct of violent activities to single out workers for imposing a maximum penalty.
63. In the present case, the management by a notice dated 11.12.1995 (Ex. M1) deducted 8 days' wages from the workers who went on strike as a punishment. Later, after the resumption of work and after the dismissal of the petitioners who were alleged as ring leaders except for these petitioners the management refunded the amount to the other workers as admitted by the Manager examined as MW4 which is as follows:-
“8 ehl;fs; rk;gsk; gpbj;jk; nra;ag;gLtjhf mwptpg;G ntspaplg;gl;lJ. 8.12.95 Njjpapy; ele;j rk;gtk; gw;wp me;j mwptpg;gpy; Fwpg;gplg;gltpy;iy. mjd;gb rk;gsk; gpbj;jk; nra;ag;gl;lJ. kDjhuh;fisj; jtpu kw;w njhopyhsh;fSf;F Ntiy epWj;jk; Kbe;j gpd;G Vw;fdNt gpbj;jk; nra;ag;gl;l rk;gsk; jpUg;gpf; nfhLf;fg;gl;lJ.”
64. This means the management themselves did not take any action against any workers, the only action of going on a so-called illegal strike. On the contrary, they picked and chose only 7 workers for special treatment. Out https://www.mhc.tn.gov.in/judis 59 WP.No.2412 of 2003 of the 7, two workers have settled out of court. After the first show cause notice, they chose to suspend the seven workers including the five petitioners herein. In the suspension order dt. 31.01.1996, they gave the following reason for suspension:-
“ckf;F 22.12.95k; Njjpapl;L mDg;gg;gl;l fhuzk; NfhUk; Nehl;Bi]j; njhlh;e;Jk; jw;nghOJ epytp tUk; #o;epiyia fUj;jpy; nfhz;Lk; epiyik rPuilAk;tiu ck;ik Nkw;gb Nehl;Brpy; fz;Ls;s Fw;wr;rhl;Lfspd; Nghpy; eltbf;iffs; VNjDk; ,Ue;jhy; mJ vLj;J KbAk; tiu ck;ik jw;fhypf r];ngd;rd; nra;ag;gLfpwJ.
ePh; njhlh;e;J Ntiyf;F tuhky; Ntiy epWj;jj;jpy; <Lgl;Lf;nfhz;Lk; Nkw;gb Nehl;Bi]g; ngw;Wf;
nfhs;shkYk; ,Ue;J tUfpwPh.; Mjyhy; Nkw;gb
Nehl;B]pd; efy; xd;W kPz;Lk; ,j;Jld; ,izj;J
mDg;gg;gLfpwJ.”
65. It must be noted on the very next day i.e. on 01.02.1996, the Joint Commissioner of Labour gave written advice (Ex.M34) in which his advice went as follows:-
“1. Ntiy epWj;jj;jpy; <Lgl;Ls;s midj;J njhopyhsh;fSk; epWtdj;jpy; R%f epiyapy; jq;fSila Nfhhpf;iffs; Fwpj;J Ngr;Rthh;j;ij Nkw;nfhz;L jPh;T fhz;gjw;F VJthf 02.02.96 https://www.mhc.tn.gov.in/judis 60 WP.No.2412 of 2003 Kw;gfy; Kjy; Ntiy epWj;jj;ijf; iftpl;L gzpf;Fj; jpUk;g Ntz;Lk;.
2. njhopyhsh;fs; jq;fspd; midj;J Nfhhpf;iffs;
Fwpj;J Ngr;Rthh;j;ijapd; %yk; jPh;T fhz Ntz;baJ.”
66. On this advice, the management’s witness MW4 who is a manager, in his cross-examination stated as follows:-
“NfhaKj;J}h; njhopyhsh; Jiw Mizah;
Kd;dpiyapy; Ngr;Rthh;j;ij ele;jJ. vk;.vy;.vg;
rq;fk; Nfhhpf;iffis Kd; itj;jJ. 1.2.96y; rkur Kwptwpf;if jhf;fy; nra;ag;gl;lJ. 5.2.96 Kjy;
njhopyhsh;fs; Ntiyf;F jpUk;g Ntz;baJ vd mwpTiu toq;fg;gl;lJ. me;j mwpTiuf;Fg; gpd;G kDjhuh;fisj; jtpu kw;w njhopyhsh;fs;
Ntiyf;Fj; jpUk;gpdhh;fs;.”
67. When the Joint Commissioner of Labour advised the workmen to return to work, unless the management revoked the suspension ordered the previous day against seven workers, how they could be expected to go back to work? It is surprising to read the statement of the Manager MW4 that barring the suspended workers the rest of the workers came back to work. In this context, the findings rendered by the Labour Court concerning the incident dated 08.02.1995 makes it appear that the Labour Court never went into the https://www.mhc.tn.gov.in/judis 61 WP.No.2412 of 2003 evidence recorded before it but made a finding contrary to law as found in paragraph 11 which is as follows:-
“epiyahizapy; Fwpg;gpl;Ls;sJ Nghy;
mDkjpapy;yhky; NtW xU gphptpw;F nry;yf; $lhJ vd;gJk;> gzp Neuj;jpy; Ntiy epWj;jk; nra;a kw;w njhopyhsh;fis J}z;lf; $lhJ vd;gJk;> gzpf;F nry;Yk; njhopyhsh;fis gzpf;F nry;ytplhky;
jLg;gJk;> rf njhopyhsh;fis jpl;LtJk;> VRtJk;
Fw;wk; vd;W kDjhuh;fs; jug;G rhl;rpNa
xg;Gf;nfhz;L rhl;rpak; mspj;jpUf;fpd;wdh;.
mtUila rhl;rpaj;ij xg;Gf; nfhs;tJ Nghy;
,uz;lhtJ rhl;rpaKk; 2 fhuzk; NfhUk;
mwptpg;gpy; fz;Ls;s Fw;wr;rhl;LfSf;fhf jhd;
gzpePf;fk; nra;jjhf xg;Gf;nfhz;bUf;fpd;whh;.
vdNt kDjhuh; kw;Wk; eph;thfj; jug;G rhl;rpaq;fis xg;gpl;L ghh;fF ; k;NghJ kDjhuh;fs; xOq;fPd nray;fspy; <Lgl;Ls;ss fhuzj;jpd;
mbg;gilapy;jhd; eph;thfk; mth;fSf;F Kiwg;gb fhuzk; NfhUk; mwptpg;G nfhLj;J> me;j fhuzk;
NfhUk; mwptpg;Gf;F kDjhuh;fs; nfhLj;j gjpypy;
eph;thfk; jpUg;jp milahj fhuzj;jpdhy; jhd;
eph;thfk; kDjhuh;fs; kPJ eltbf;if vLj;Js;ssJ vd;gJ njhpatUfpd;wJ.”
68. The Counsel for the Petitioners brought to the notice of this Court certain decisions which may have a bearing on this case. He referred to the https://www.mhc.tn.gov.in/judis 62 WP.No.2412 of 2003 judgment in B.R. Singh vs. Union of India reported in 1989 (4) SCC 710 and referred to the following passage found in para 15 of the judgment which is as follows: -
“The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively with the managements. This bargaining power would be considerably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit-in, work-to-rule, absentism, etc., and strike is one such mode of demonstration and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers.”
69. He contended that the Labour Court in paragraph No.12 of the impugned award had referred to the judgement of the Hon'ble Supreme Court in https://www.mhc.tn.gov.in/judis 63 WP.No.2412 of 2003 Bharat Iron Works Vs. Bhagubhai Balubhai Patel reported in 1976 (1) SCC 518 and rejected the contention of the workmen regarding victimization. The Labour Court had extracted the following passage from the aforesaid Supreme Court judgment:-
“Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes……… The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced. Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to https://www.mhc.tn.gov.in/judis 64 WP.No.2412 of 2003 the penal action without the necessary proof of a valid charge against him.”
70. The Learned Counsel contended that the above-said judgment was considered by the Hon'ble Supreme Court subsequently in Colour-Chem Limited Vs. A.L.Alaspurkar & Ors. 1998 (3) SCC 192 in Para 13 and it was observed as follows:
“The term ‘victimisation’ is defined neither by the Central Act nor by the Bombay Act. Therefore, the term ‘victimisation’ has to be given general dictionary meaning. In concise Oxford Dictionary, 7th Edn., the term ‘victimisation is defined at Page 1197 as follows:
“make a victim; cheat; make suffer by dismissal or other exceptional treatment” Thus if a person is made to suffer by some exceptional treatment it would amount to victimisation. The term ‘victimisation’ is of comprehensive import. It may be victimisation in fact or in law. Factual victimisation may consist of diverse acts of employers who are out to drive out and punish an employee for no real reasons and for extraneous reasons. As for example a militant trade union leader who is a thorn in the side of the management may be discharged or dismissed for that very reason camouflaged https://www.mhc.tn.gov.in/judis 65 WP.No.2412 of 2003 by another ostensibly different reason. Such instances among to unfair labour practices on account of factual victimisation. Once that happens Clause (a) Item 1 of Schedule IV of the Act would get attracted. Even apart from the very same act being covered by unfair labour practices envisaged by Clauses (b), (c ), (d) and (e) of the very same Item 1 of Schedule IV. But is cannot be said that Clause (a) of Item 1 which deals with victimisation covers only factual victimisation. There can be in addition legal victimisation and it is this type of victimisation which is contemplated by the decision of this Court in Hind Construction (supra). It must, therefore, be held that if the punishment of dismissal or discharge is found shockingly disproportionate by the Court regard being had to the particular major misconduct and the past service record of the delinquent or is such as no reasonable employer could ever impost in like circumstances, it would be unfair labour practice by itself being an instance of victimisation in law or legal victimisation independent of factual victimisation, if any. Such an unfair labour practice is covered by the present Act by enactment of Clause (a) of Item 1 of Schedule IV of the Act as it would be an act of victimisation in law as clearly ruled by this Court in the https://www.mhc.tn.gov.in/judis 66 WP.No.2412 of 2003 aforesaid decision. On the same lines is a latter decision of this Court in the case of Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors. [(1976) 2 SCR 280] wherein a Bench of three Learned Judges speaking through Goswami.J. laid down the parameters of the term ‘victimisation’ as understood in labour laws and as contemplated by industrial jurisprudence. It has been observed that ordinarily a person is victimised if he is made a victim or a scapegoat and is subjected to persecution, prosecution or punishment for no real fault or guilt of his own. If actual fault or guilt meriting punishment is established. Such action will be rid of the taint of victimisation. The aforesaid observations obviously refer to factual victimisation. But then follows further elucidation of the term ‘victimisation’ to the following effect:
“Victimisation may partake of various types, as for example, pressurising all employee to leave the union or union activities, treating an employee in a discriminatory manner or inflicting a grossly monstrous punishment which no national person would impose upon an employee and the like…..” https://www.mhc.tn.gov.in/judis 67 WP.No.2412 of 2003 By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill the fly with a sledge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by Clause (a) of Item 1 of Schedule IV of the Act being legal victimisation, if not factual victimization.”
71. Even earlier, the Hon'ble Supreme Court in Workmen of Williamson Magor & Co Ltd vs Williamson Magor & Co. Ltd. Reported in 1982 (1) SCC 117 also dealt with similar question of victimization and gave the following interpretation:-
“The word ‘victimization’ has not been define in the statue. The term was considered kby this Court in the case of Bharat Bank Limited v. Employees of Bharat Bank Ltd. This Court observed, “It (victimization) is an ordinary English word which means that a certain person has become a victim, in other words, that he has been unjustly dealt with”. A submission was made on behalf of the management in that case that ‘victimization’ had acquired a special meaning in industrial disputes and connoted a person who became the victim of the https://www.mhc.tn.gov.in/judis 68 WP.No.2412 of 2003 employer’s wrath by reason of his trade union activities and that the word could not relate to a person who was merely unjustly dismissed”. This submission , however, was not considered by the Court. When, however, the word ‘victimization’ can be interpreted in two different way,s the interpretation which is in favour of the labour should be accepted as they are the poorer section of the people compared to the management.
This Court in the case of K.C.P. Employees’ Association, Madras v. Management of K.C.P. Ltd., Madras & Ors. Observed:
“In Industrial Law, interpreted and applied in the perspective of Part IV of the Constitution,the benefit of reasonable doubt on law and facts, if there be such doubt, must go to the weaker section, labour. The Tribunal will dispose of the case making this compassionate approach but without over-stepping the proved facts”.
We would therefore accept the interpretation of the word ‘victimization’ in the normal meaning of being the victim of unfair and arbitrary action, and hold that there was victimization of the superseded workmen.” https://www.mhc.tn.gov.in/judis 69 WP.No.2412 of 2003
72. This finding recorded by the first Respondent Labour Court overlooks the materials on record placed before it in the form of both documentary and oral evidence and borders around perversity. The second Respondent management had failed to provide materials in support of the charges levelled against these workmen. This Court is satisfied that there are no materials to hold that apart from the fact that the petitioners went on strike there were any other instances to show that they had committed misconduct alleged against them by the management. Hence, this court has no hesitation to set aside the impugned award made in I.D.Nos. 266/97, 267/97,268/97, 269/97 and 270/97 dt. 21.09.2001.
73. Then the next question is to what relief the workmen are entitled to. In the writ petition, the workmen had demanded reinstatement with continuity of service, back wages and other attendant benefits. In the counter affidavit filed except resisting the relief claimed no special reason was pleaded to deny them the relief of reinstatement. In any event, in the claim statement filed before the 1st Respondent Labour Court, the workmen had made a similar plea https://www.mhc.tn.gov.in/judis 70 WP.No.2412 of 2003 for reinstatement w.e.f. 15.06.1996 with all consequential benefits. In the counter statement except denying that the workers were not entitled to relief, no special circumstances have been pleaded.
74. The Hon'ble Supreme Court in the judgment in Gujarat Steel Tubes (cited supra), it was categorically held that when the labour court/arbitrator failed to exercise their power, the High courts under Article 226 can exercise the power and remedy the injustice and it was observed as under:-
“Dual jurisdictional issues arise here which have been argued at some length before us. The position taken up by Sri Sen was that the High Cour6t could not, under Article 226, direct reinstatement, and even it felt that the arbitrator had gone wrong in refusing reinstatement, the could could only demolish the order and director the arbitrator to reconsider the issue. What belonged, as a discretionary power, to a tribunal or other adjudicatory body could not be wrested by the writ court. To put it pithily, regarding the relief of reinstatement,the arbitrator could but would not and the High Court would but could not. (We will deal later with the point that the arbitrator had himself nol power under Section https://www.mhc.tn.gov.in/judis 71 WP.No.2412 of 2003 11A of the Act but did have it in view of the wide terms of reference.) The basis of this submission as we conceive it is the traditional limitation woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired by the royal writs its weep and scope exceed hide-bound British processes of yore. We are what we are because our Constitution-framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring; nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by teh High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present inhibit the exercise but do no abolish the power.” [Emphasis added]
75. During the pendency of the dispute, it was seen that the two workers Sarojini and Padma had settled their claims and the Award was passed by the https://www.mhc.tn.gov.in/judis 72 WP.No.2412 of 2003 Labour Court dismissing the reference. The two awards were marked as Ex. M31 and Ex.M32. It is also seen that the workers have respectively received Rs. 25,000/- and Rs. 35,000/- and have given a full quit. Though the management witness MW4 stated that those two workers had admitted their guilt and pleaded for leniency, the same was not proved before the Labour Court. In cross-examination, the witness had stated as follows:-
“gj;kh> rNuh[pdp MfpNahh; jtiw xg;Gf;nfhz;ljw;F Mtzq;fs; jhf;fy; nra;atpy;iy. mth;fSld;jhd; Neubahf NgrpNdd;. mth;fSld;; Vw;gl;l xg;ge;jk; ,e;j ePjpkd;wj;jpy; jhf;fy; nra;ag;gltpy;iy.”
76. But in the present case, the Petitioners' workmen have proved that they have not indulged in any illegal act to take a different action. The management itself had condoned all the workers who went on strike by refunding the 8-day wage cut imposed on them as noted already. The Petitioners' workmen in their claim statement before the Labour Court had stated in paragraph 15, that they were without employment ever since their suspension that they were the breadwinners of their family and that it was difficult to get any alternative employment. In the counter statement filed https://www.mhc.tn.gov.in/judis 73 WP.No.2412 of 2003 before the Labour Court, this allegation was not specifically denied except for a broad denial of all allegations in paragraphs 8 to 15. In the affidavit filed before this Court, in paragraph 9, they had stated that they are without employment. In fact, they took out an application in W.M.P.No. 3030 of 2003, they claimed reinstatement even as a temporary employee pending final disposal of the main writ petition which was not accepted by this Court.
77. The Hon'ble Supreme Court vide its decision in Deepali Gundu Surwase Vs. Kranti Junior Adyapak Mahavidyalaya reported in 2013(10) SCC 324 as dealt with the question of quantum of back wages in case of reinstatement. In paragraphs 18 and 20 it was observed as follows:-
“Coming back to back wages, even if the court finds it necessary to award backwages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of which awarding back https://www.mhc.tn.gov.in/judis 74 WP.No.2412 of 2003 wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore,it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. But there are two exceptions. The first is where the court set aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc., will be the same as those applied in the cases of an illegal termination.” https://www.mhc.tn.gov.in/judis 75 WP.No.2412 of 2003
78. It is seen from the records that the workmen at the time of dismissal were around the age of 25 years. It is to their misery the industrial dispute raised by them took 6 years to conclude and this Court had kept their cases pending for more than 21 years. For this, they cannot be penalized by denying back wages. Hence this Court has no hesitation in setting aside the Common Award dated 21.09.2001 in I.D.Nos.266/97, 267/97, 268/97, 269/97 and 270/97 of the first Respondent Labour Court and consequently set aside the dismissal orders dated 15.06.1996 passed against the Petitioner workmen by the second Respondent Management and also hold that the workmen are entitled to reinstatement with continuity of service with full back wages and all other attendant benefits with costs to be paid by the second Respondent. The cost is quantified at Rs.25,000/-. Accordingly, this writ petition is allowed.
20.11.2024 Internet:Yes/No Index: Yes/No gns/dpq To The Presiding Officer, https://www.mhc.tn.gov.in/judis 76 WP.No.2412 of 2003 Labour Court, Coimbatore.
Dr.A.D. MARIA CLETE,J gns/dpq Pre-Delivery Order made in W.P. No. 2412 of 2003 https://www.mhc.tn.gov.in/judis 77 WP.No.2412 of 2003 Dated: 20.11.2024 https://www.mhc.tn.gov.in/judis 78