Madras High Court
S. Muthuraman And Ors. vs The Presiding Officer, Labour Court And ... on 4 April, 2003
Equivalent citations: (2003)IIILLJ52MAD
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
ORDER R. Jayasimha Babu, J.
1. The charge memo that was issued to the petitioners - workmen on 26.8.1989 set out the following:
W.P.6335/96
1. Yesterday i.e. 26.8.89 by about 6.15 p.m. when the Mill Spinning Superintendent Thiru. Vasudevan Nair, Personnel Officer Thiru. A. Natarajan and Maintenance Manager Thiru. S.S. Mohanram were returning home from finishing their work in the mill with a Ambassador car bearing Regn. No. TAA595 which belongs to the Mill, you have blocked our car between Pagaiyani village and Nemmaalli Village (Ramanathapuram-Devakottai Main Road) in a narrow bridge with two cycles and you had intention to attack them.
2. At about 6.30 PM when the mill car driver byname Bhagavathy after seeing the cycles blocking the road on the bridge, he had no way to drive the car and stopped. At that time S. Chelladurai, A. Mohanram, K. Palanisamy and S. Muthuraman who were assembled and appeared suddenly before them them with dangerous weapons like knife, Aaruval Velkambu and sticks. S. Chelladurai opened the car door and asked the driver to come out of the car, pulled his hand and pushed him out of the car. Then all of you joined together and along with one K. Ramasamy who was ex employee of the mill and abandoned the service, attacked the car driver and inflicted severe wounds. Further you have threatened the car driver "Not to move from this place otherwise we will kill you".
3. In continuance of the incidents narrated in para 2 above you have threatened the Mill Superintendent Vasudevan Nair shouting with the words "what you are thinking of us? you are fighting with us without knowing our self, you have refused to negotiate with us regarding the wages issue, and you are handling the machines without out knowledge. You are deliberately degrading us in the mill. Take this for all your misdeeds" and pulled down from the car and three him on the road. In addition to this you have pulled out the Personnel Officer. A Natarajan and Maintenance Manager N.S. Mohanram from the car and threw them on the road.
4. As stated above, when Sri. Vasudevan Nair fell down on the road, one of you named N. Chelladurai who was having a Velkambu in his hand attacked him and inflicted severe wounds and blood strains on his right chest, shouldering bones, back side of ear, back side of his head and right wrist. The other three of you along with K. Ramasamy assaulted him and tore his shirts and banniyans, threatened and shouting against him with these words " you only asked to remove the machines, you did not want us in the negotiations and we will burn you and your family.
5. After the above incidents you all have beaten up A. Natarajan, Personnel Officer who have fallen on the road and inflicted wounds on him. That you have threateningly shouted at him "If you go and report in the Police Station, we will kill you and your family" with these words they took their cycles and went towards Puliyal village.W.P. No. 6335/96
1. The three out of five persons noted to come fork the night shift on today. The other two persons came for the morning shift and took leave before the shift started. The two of you who had gone with leave and the other three persons who had to come for nightshift have joined with other co-workers at about 7.40 am forcibly entered in to the mill without permission from the superior officers.
2. After the incident in para 1 all of you have entered into front gate of the mill and entered in to the spinning department and switched off the running spinning machines and also entered in to the open exit (O.E) spinning department and switched off the running machines and prevented the workers who were working there and you are all threatened the workers that " be careful no body to run the machines otherwise you have to face dire consequences".
3. After the incident in para 2, when the superior officer came to the spinning department and told you that "why switched off the machines and stopped, run the machines". You are all joined together and threatened him with these words " we will not run the machines and we will not allow running the machines, if you do anything we will cut your hands and legs and make you without walking. Have you forgotten the incident of yesterday, be careful"?
4. After the incident stated above all of you came out to the front gate of the mill and shouted "Owner down down" and "Worker unity Zindabad" due to this slogans all the workers came out from their departments, one Kottaisamy looking at the morning shift employees and threatened them " unless the solution is found in respect of the arrested four workers, we will not allow the mill to run, no body should run the mill, if anybody run the mill you have to face serious consequences".W.P. No. 6336/96
1. The two persons came for the morning shift and took leave before the shift started. The third of you are under the weekly holiday on to day. The two of you who had gone with leave and the other person who had weekly holiday on today have joined with other co-workers at about 7.40 AM forcibly entered into the mill without permission from the superior officers.
2. After the incident in para 1 all of you have entered into front gate of the ill land entered into the Probatery Department, End Spinning Department, canteen, Comber, and Bloc Room departments and switched off the running machines and prevented the workers who were working there and you re all threatened the workers that "We are going to stop the Achilles no body to run the machines otherwise you have to face Severe consequences".
3. After the incident in para 2, when the superior officer came to and asked that "why you are all switched off the machines and stopped the machines". You are all joined together and threatened him with these words "we will not run the machines and we will not allow running the machines, don't interfere in our matters, otherwise we will beat you like the incident of yesterday".
4. As stated above incidents you have given heavy loss to the Mill.W.P. No. 6337 of 2003
1. The first mentioned two out of five persons were stopped to come for the evening and other three persons supposed to come for the night shift today. You have joined with other co-workers at about 7.40 AM forcibly entered into the mill without permission from the superior officers.
2. After the incident in para 1 all of you have entered into front gate of the mill and entered into the winding department and switched off the running winding and reeling machines and prevented the workers who were working there and you are all threatened the workers that "you should not run the machines if you defy and run the machines, something will happen, we are going to stop the machines" shouting these words, and switched off the machineries in the winding and reeling departments and prevented the workers of the winding and reeling department from carrying their work.
3. When the superior officer, after the incident in para 2 questioned the workers that "why switched off the machines and preventing workers from their work" one Naganathan out of you him with the words "you go and do your work, if you interfere in our matter, we will bear you to pieces like others done on yesterday"
2. The workmen filed the reply and also appeared before the Enquiry Officer at his first sitting which was on 14.11.1989. The next day, they sent a letter making several demands therein with regard to the enquiry demanding inter alia that they be furnished with copies of the standing orders, that they be paid subsistence allowance, that the proceedings of the Enquiry Officer should be given to them at the end of each day, and that they be allowed to be represented by an Advocate or a trade union leader.
3. The Management sent a reply acceding to several of those demands, but declining to permit the representation of the employees through an Advocate or a trade union leader. The permission to have their assistance was declined on the ground that the standing orders did not permit the same. Request for furnishing of the proceedings of enquiry at the end of each day was also declined.
4. Enquiry was thereafter held after due notice, but the employees did not attend the enquiry that was held on 6.12.1989. On that day, the enquiry was not concluded, but adjourned to a later date of which notice was also given. The workmen then sent a letter on 18.12.1989 demanding that they be allowed to be represented by a co-worker. The management declined to grant such permission again on the ground that the standing orders did not make any provision for it. The enquiry was thereafter held on 21.12.1989. Though the workmen had notice of the same, they did not appear on that date also. Thereafter, the enquiry proceedings were closed after placing the workmen ex parte and after recording the evidence for the management.
5. The workmen raised a dispute which was adjudicated upon by the Labour Court, Madurai. As to whether the enquiry was conducted lawfully, and in accordance with the principles of natural justice was made one of the issues before it . The Tribunal held that the enquiry was in fact conducted in accordance with law and after due observance of the principles of natural justice. It also held that the charges against the workmen had been proved, that the punishment of dismissal was justified, and that the petitioners were not eligible for any relief under Section 11A of the Industrial Disputes Act.
6. Learned counsel for the workmen - petitioners placing reliance on the decision of the Apex Court in the case of The Board of Trustees Vs. D.R. Nadkarni and others (1983 I L.L.J. Page 1 ) submitted despite absence of a specific provision in the standing orders, as also in the absence of any prohibition therein, the management was duty bound to permit the delinquent workmen to have the services of an Advocate, or trade union leader or a co-worker. The case before the Supreme Court was in the context of an enquiry which was held against an employee of the Port Trust in which the Port Trust was represented by legally trained persons. The Port Trust had declined to permit the workmen to engage a legal practitioner on the ground that the standing orders did not provide for it. The Court held that the denial of benefit of the assistance of a legal practitioner in the context of the facts of that case resulted in denial of a fair hearing to the workmen, and that the absence of a provision in the standing orders with regard to the engagement of legal practitioner by the workmen was not a justification for upholding the enquiry which had been conducted after denying to the workmen the assistance of a legal practitioner, even when the management was represented by legally trained persons.
7. The observations made in that judgment with regard to the effect of the absence of provision in the standing orders must be viewed in the context of the facts of that case, and cannot be read as imposing an obligation on the employers to compel them to provide such assistance even when the management itself was not represented by legally trained persons. The observations of the Court, and the law laid down therein was meant to ensure that the scales were held even in a contest between unequals, and that if the management had the benefit of the assistance of the legally trained persons, the workmen could not be denied the benefit of the assistance of legally trained persons.
8. In this case, the management was not represented by legally trained persons. So, the question of ensuring the balancing of the scales by allowing the workmen to have the assistance of legally trained persons did not arise.
9. The assistance of a trade union leader is not provided for in the certified standing orders or the model standing orders under the Rules framed by Tamil Nadu under the Industrial Employment (Standing Orders) Act, and there is no principle on which it can be said that the denial of benefit of the assistance of a trade union leader would vitiate an enquiry. It was open to the management to decline to permit the representation of the workmen by the trade union leader when the standing order itself did not provide for such representation. Although the model standing orders prescribed under the Central Rules provide for representation of the delinquent workman by an office bearer of a trade union of which that workman is a member, similar provision is not made in the model standing orders under the State Rules.
10. The model standing order under the State Rules, as also the standing order duly certified under the Industrial Employment (Standing Orders) Act,1946 with respect to this industrial establishment, do not provide for the assistance of a co-worker being provided to an employee. In the context of the facts of this case, the stand of the management that it was not required to permit the workmen here to have the assistance of a co-worker cannot be said to be a breach of it's standing orders or of the principles of natural justice, or as resulting in a denial of fair hearing to the workmen.
11 The model standing orders prescribed by the statute can be regarded as a minimum standard, as in fact it is in terms of the statute. The framers of the Tamil Nadu State Rules have evidently not regarded provision of the assistance of a co-worker to the delinquent workmen as being essential requirement for ensuring a fair hearing to the workmen in a domestic enquiry. The certified standing orders for this establishment also do not provide for it, which again would indicate that even the trade unions and the workmen who have a right to be heard before the standing orders are certified, and are entitled to seek changes even after certification, did not regard the provision of assistance by a co-worker as an essential requirement for a fair enquiry against delinquent workmen.
12. The principle enunciated by the Apex Court in the decisions beginning with the case of M.H. Hoscot Vs. State of Maharashtra regarding the right of an accused to legal assistance, was extended to domestic enquiries in the case of D.R. Nadkarni (supra) and it was further amplified in later decisions which decisions were rendered in the context of one of the two opposing parties having the benefit of legally trained persons while similar benefit had been denied to the other party. That principle cannot be further extended in the case of domestic enquiry held in accordance with the provisions of the model standing orders that would be applicable to the industrial establishment and also in accordance with the certified standing orders.
13. It is eminently desirable that a delinquent workman be permitted to have the service of a co-worker or, the Office bearer of the trade union of which he is a member, at the domestic enquiry. What is desirable is, however, not always what is mandated by law. Statutory provisions are not to be re-written and requirements which are not part of the statute, read into the same.
14. Unless there are compelling reasons, the need to provide legal assistance to one of the parties when the other party had the benefit of such assistance being a fundamental matter, the Courts have held that notwithstanding the absence of a provision for granting such assistance in the standing orders, the larger requirements of fairness mandates that management who want to have the benefit of the assistance of such legally trained persons must recognise a similar right in the delinquent workmen against whose conduct the enquiry is being held. Where, however, in the domestic enquiry, the management merely participate through it's own officers who are not legally trained, workmen cannot assert a right to be represented through another, unless the standing orders provide for the same, or the Enquiry Officer permits such assistance.
15. Counsel also contended that the denial of the copies of the enquiry proceedings at the end of each day also vitiated the enquiry. There is no requirement in the standing orders that the copies of the day's proceedings are to be furnished at the end of each day. That is not done even in a Court of law. The participation in the domestic enquiry by the delinquent will ensure that he is kept informed of all that is transpires in the enquiry. It is always open to him to note down the things that are said and done at the enquiry. The enquiry, therefore, cannot be held to be vitiated on this ground.
R. Jayasimha Babu, J.
16. The writ petitions are dismissed.