Punjab-Haryana High Court
Ms. Annamma Jose vs M/S Maruti Suzuki India Ltd on 9 July, 2012
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.17254 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION : 9 .7.2012
Ms. Annamma Jose
...Petitioner
Versus
M/s Maruti Suzuki India Ltd., Palam Gurgaon Road, Gurgaon and another
...Respondents
CORAM: HON'BLE MR.JUSTICE RAJIV NARAIN RAINA
PRESENT: Mr.Indivar William Gosain, Advocate for the petitioner
Mr.Harsh Aggarwal, Advocate for respondent no.1
....
Notes: 1.Whether to be referred to the reporters or not?Yes
2.Whether the judgment should be reported in the Digest?Yes
....
RAJIV NARAIN RAINA, J.
The Legal heirs and representatives of late C.V.Jose are before this Court in this petition under Articles 226/227 of the Constitution of India assailing the impugned award passed by the Presiding Officer, Labour Court-I, Gurgaon dated 23.7.2009 (Annexure P-21) in reference under Section 10(1)(c) read with 2A of the Industrial Disputes Act, 1947 (for short "the Act"). Dismissal order dated 26.4.2000 CWP No.17254 of 2009 2 was passed following an enquiry in which the charge was not proved, but in disagreement expressed by the punishing authority, the services of the deceased employee were dispensed with. The Labour Court has gone on general principles attaching to judicial review and examination of correctness and propriety of enquiries conducted and has found that the procedure followed was not illegal, and therefore, the punishment order calls for no interference.
The brief facts are that a charge was levelled against C.V.Jose that while posted at Paint Shop-1 in A Shift at Top Coat Preparation Zone of M/s Maruti Suzuki India Ltd. (for short "MUL"), on 12.12.1997, he deliberately with an intention to cause extensive damage to the Paint Shop ignited a match stick at 2.25 p.m. and threw it in the thinner box used for jigs cleaning as a result of which, fire broke out in the booths. A calamity is said to have been averted due to timely activating of the Carbon dioxide (CO2) system used for fire fighting. On the aforesaid charge framed, an Enquiry Officer was appointed. Both the parties led their evidence before the Enquiry Officer. After considering the evidence on record, the Enquiry Officer by his report dated 4.9.1999 came to the conclusion that the charges levelled against C.V.Jose were not proved. The Deputy Divisional Manager (Plant-I), Production Division, being the disciplinary and punishing authority of C.V.Jose reached the conclusion that the report of the Enquiry Officer was cryptic, and there was failure in it to analyse the evidence and systematically discuss the statements of various witnesses. He found that the findings of the Enquiry Officer were lacking and not based on material on record. The disciplinary authority dissented and arrived at the conclusion that the witnesses produced by C.V.Jose in his defence did not tell the truth regarding presence of C.V.Jose at the place of fire on the date of occurrence. Consequently, the disagreement note together with the report of the Enquiry Officer CWP No.17254 of 2009 3 was forwarded to C.V.Jose for his comments. C.V.Jose represented against both in his response dated 25.4.2000. The response is stated to have been examined and not finding any substance or merit in the same, the extreme punishment of dismissal from service was inflicted on C.V.Jose finding no extenuating circumstances warranting lesser punishment. The order of dismissal passed by the Deputy Divisional Manager (Plant 1) dated 26.4.2000 is placed on record as Annexure P-17. C.V.Jose's statutory appeal dated 24.5.2000 before the Joint Managing Director, MUL was turned down by order dated 30.9.2000 (Annexure P-19). In the face of dismissal of appeal, C.V.Jose raised a demand notice under Section 2A of the Act and sought reference to the Industrial Tribunal-cum-Labour Court-1, Gurgaon. On failure of conciliation procedings the appropriate Government made Reference No.540 of 2002 regarding the validity of the dismissal order which has been answered by the impugned award dated 23.7.2009 against the workman and against which the present writ petition has been filed.
Since the Enquiry Officer had exonerated C.V.Jose of the charges levelled and the disciplinary authority chose to disagree with the findings of the enquiry, it became incumbent upon the Court to examine the enquiry report with extra care. The disciplinary authority records in the disagreement note that the enquiry report is cryptic; there is no systematic discussion of statements of various witnesses and that the findings are not based on materials on record. This view has been capped with an emphatic statement that the disciplinary authority was convinced that the witnesses produced by C.V.Jose were not telling the truth as to his presence on the spot where the fire broke out. To my mind a careful examination of the enquiry report does not support the reason assigned by the punishing authority in disagreeing with the report. There is ample and lucid discussion of both the CWP No.17254 of 2009 4 Management and the defence witnesses in the report. There is no direct evidence against C.V.Jose, except Raju, MW3 who stated that he was working as an Apprentice from December 1996 to December 1997 at MUL. Raju stated that he had seen Jose throw the lighted matchstick in the thinner contained in the Jig Box at about 2.25 p.m. on 12.12.1997. It was a defence of Jose that he was not present near the Jig Box, but was taking tea with collegues in the rest area at the time of fire. In support of Jose's defence, there was clear evidence of A.Yohannan, DW-1, K.N.Vidhyadharan, DW4 that on the fateful day, Jose was taking tea in the rest area alongwith K.N.Vidhyadharan, DW4 and other employees and according to the said witness, no one including Jose was present within 25 feet of the fire. Azad Singh, DW6 in his statement confirmed that he was with Jose sitting in the rest area when he heard of the fire and on knowing of it both ran out and left the rest area. Rabhubir Singh, DW7 has also confirmed the presence of Jose in the rest area when the fire broke out. Madan Lal Sharma, DW8 stated that he was present when the D.P.M. later had called Jose in connection with the fire in Paint Shop-1 when he threatened him to write an admission that he was responsible for lighting the fire. The DPM had given pen and paper to Jose for this purpose. Jose was upset and refused to write. It transpires that after recruitment in MUL on 16.5.1986, he was diagnosed with a psychiatric problem in 1989 and this fact was known to the Management. He admitted that he signed the paper, but not in full consciousness. The Enquiry Officer did not pin much on the statement of Raju, MW3, the sole witness of the Management which was against Jose. The Enquiry Officer found no corroboration of this stand-alone evidence from independent source. On the other hand, Jose's version has been corroborated by four independent witnesses, DW4, DW5, DW6 and DW7 who categorically stated that Jose was sitting and taking tea in the CWP No.17254 of 2009 5 earmarked rest area with them when the fire broke out on 12.12.1997 near the Jig Box at the time and he was not responsible for causing it. In fact no human could I think have thrown as light an object as a matchstick lighted or not to such distance involved between the rest area and the site of the fire. The statement of Raju makes interesting reading and deserves to be quoted:-
"Statement of Sri Raju, Ex-Apprentice, MUL Examination-in-Chief I was working as Apprentice from Dec '96 to Dec '97. I have read my statement dated 12.12.1997 (Ex.M2) and confirm the contents and my signature thereon. I had written this statement (Ex.M-2) In Paint Shop and had given it to Mr.Nirwan. I had given it voluntarily and no pressure was put on me. I identify Sri C.V.Jose who is sitting here. The examination-in-chief is over. Cross-Examination I have not taken any test for appointment in MUL after completing your apprenticeship. If I qualify in the LWO test and MUL offers appointment I will join the Co. I am not in service at present. Since I have not got any job, I am doing work at my house. I am not trying for a job in MUL. I do need the job I have been contacted on phone to appear as a witness by Sri RK Sharma, Supervisor, PS-1 to whom I had given my telephone number. I was asked to write whatever I had seen and as such I gave it in writing voluntarily. I was taking training under the Supervisor. I know Sri C.V.Jose and he used to meet me on the line and enquire about my health. I do not know whether CE CWP No.17254 of 2009 6 was ill. CE has never quarreled with him. If I were near the fire, even I would have caught fire. Except a few vehicles were held up, there has been no damange consequent to fire. The Jig Box had caught fire and nothing else caught fire. The Jib Box was made of iron. I saw fire in the Jib Box and there was no damage to anything else. There is no damange to Jig Box. The Cross-examination is over.
Re-Examination Nil The contents have been explained to me in Hindi and are correct.
Sd/-
Raju 30.9.98"
It deserves to be remembered that none of the other Management witnesses were eye-witnesses to the incident. The basic issue, to my mind, is to counter- balance the evidence of Raju, on the one hand and four independent defence witnesses, on the other hand and who is to be believed.
The disagreement note is long and laboured. There is no material on record from where this Court can hold or discern that the witnesses produced by Jose were not telling the truth. As to how the disciplinary authority was convinced that the witnesses had spoken lies remains in darkness. It appears that Jose's mental condition was used against him. To put it bluntly, it appears to me to be a case where you give a dog a bad name and kill it. The statement of Raju inspires no confidence in this Court and deserves to be rejected. He was interested and had an axe to grind by speaking in favour of the management. The Enquiry Officer did well CWP No.17254 of 2009 7 not to rely on the statement of Raju and the Labour Court, I am afraid, derelicted from its duty in not even examining the evidence cursorily not to speak of threadbare and shutting itself out merely on the procedural aspects of the enquiry. The enquiry to be fair and proper is not cosmetic. The procedure is only a tool in the hands of justice. It is the job of the Labour Court under Section 11-A of the Act to go under the skin of the case, if not bone deep into evidence without being trammeled or overawed by a disagreement note which in the present case is worth no more than waste paper.
To turn to the testimony of AS Nirwan, appearing as Management witness, it may be noticed that the match stick used for igniting of fire was kept with him and he stated that he would search out the same for production before the Enquiry Officer. The burnt match stick was the corpus of the charge. The tip and some upper portion was said to be burnt. It was Nirwan who had found the burnt match stick in the Jig Container in the presence of Shri KK Gaur which was drowned in the Thinner. The burnt match stick which was stated to have been retrieved from the Jig Box, after the fire broke out was not produced during the enquiry. I see no admission of guilt by Jose sufficient to discard the statement of defence witnesses. Much has been made of Ex.M5. It has been used as a confessional statement of Jose. It is at Annexure P-
10. The repeated letters "I" "I" seen in the document are too far separated from the context and gives rise to serious doubt in my mind as to its authenticity. The same needs to be reproduced as under:-
"The Manager P/S, I M.U.L. Gurgaon Sir, CWP No.17254 of 2009 8 I Time About 2:30, on 12/12/97 Match Box -
I Ignited -
T/C Booth- thinner Box
sd/- Jose .C. V,
132080
Witnesses
sd/- Ashwani Sharma
sd/- Illegible
sd/-Illegible 22/6/98
sd/-Illegible"
On a careful consideration of the facts, and examination of the issues involved and having heard the learned counsel for the parties at length, I am inclined to reach the conclusion that the award of the Labour Court deserves to be set aside as also the order of dismissal and the order passed in the review petition. I would allow the writ petition there being no direct evidence against Jose. Even the tests of probability of preponderance of evidence when applied would not bring home the guilt of Jose so as to justify dismissal from service. The award of the Labour Court (Annexure P-21), order of termination (Annexure P-17) and the order dismissing the appeal (Annexure P-19) are hereby quashed. CV Jose would be deemed to have been in service till his death. The petitioners are held entitled to all consequential benefits flowing therefrom, as a result of the quashing of the dismissal order. MUL is directed to calculate and hand over the monetary benefits accruing to the petitioners under the present orders within two months from the date of receipt of a certified copy of this order, failing which interest would run on aforesaid monetary claims and consequential benefits at the rate of 18% per annum from the date of death till actual payment is made. If MUL has any extant policy for compassionate CWP No.17254 of 2009 9 appointment, it may consider the case, if any request is made by the family of the deceased, in accordance with law as expeditiously as possible.
(RAJIV NARAIN RAINA) JUDGE
9. 7.2012 MFK