Madras High Court
B. Govindarajulu vs The Management Of K.P.V. Shaik Mohamed ... on 28 June, 1996
Equivalent citations: (1996)IILLJ593MAD
Author: A.C. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT A.C. Lakshmanan, J.
1. The above Writ Appeal is directed against the order dated Septembers, 1995 in W.P. No. 2330 of 1992 by a learned single Judge of this Court allowing the Writ Petition filed by the 1st respondent/management.
2. The appellant is an employee of the 1st respondent/management. The management filed the Writ Petition aggrieved by the award passed by the Industrial Tribunal in J.D. No. 3 of 1986, by which the management was directed to reinstate the workman with continuity of service and back wages.
3. The workman was appointed on September 11, 1969 in the services of the management as a Foreman in its dock office. Clause 7 of the order of appointment provides that the workman is liable to do work in the main office or dock office of any type of work involving writing or such like desk work. On June 13, 1982, the workman was transferred by the management from the dock office to the main office. It is not in dispute that the main office is situated across the road from the Port within which the dock office of the management is located. Since the workman did not report for duty at the main office and remained absent from June 15, 1982, his name was struck off from the rolls. Thereupon, the management on August 11, 1982 served a charge memo on the workman on which a domestic enquiry was held. Five charges were framed against him, which are as follows:
"a) Being absent for work on June 15, 1982.
b) Remaining absent from June 16, 1982 onwards.
c) Refusing to acknowledge the receipt of notice.
d) Inciting and intimidating Mr. Abdul Majid who met him to serve a memo. and
e) Habitual unexplained absenteeism."
4. The workman in his explanation dated August 16, 1982 stated that he is not liable for transfer to the main office and therefore, was not required to obey the transfer order. However, he did not dispute the fact that he had stayed away from work. His only stand was, that his name was struck off in the dock office. He did not evince any interest or signify any willingness to work in the main office, in accordance with the order of transfer. A domestic enquiry was held, which was conducted by the management's Personnel Officer.
On September 14, 1982, the workman appeared before the Enquiry Officer and sought an adjournment and after the enquiry was adjourned to the following day, i.e., September 15, 1982 the workman refused to participate any further in the enquiry and he left the premises. Thereafter, witnesses, were examined. After considering the evidence adduced at the enquiry, the Enquiry Officer submitted a report to the management in which he held that all the charges against the workman had been proved. Thereafter, the workman was removed from service by order dated November 8, 1982.
5. The Enquiry Officer has specifically held that the charges of mis-conduct alleged against the workman had been proved at the enquiry. Thereupon, the workman raised an industrial dispute before the Industrial Tribunal. Before the Tribunal, a preliminary issue was raised regarding the validity of the enquiry. The Industrial Tribunal by order dated June 13, 1989 had categorically noted that the workman had refused to sign the proceedings of enquiry on September 14, 1982 or September 15, 1982 as also the admission of the workman, who was examined as W.W.I, that he had no enmity with the Enquiry Officer, holding that the enquiry held was fair and proper. The Tribunal in the course of its enquiry, framed three points for determination, which are as follows:
1. Whether the charges against the petitioner have been proved by the evidence recorded before this Tribunal?
2. Whether the punishment of dismissal is just and warranted?
3. To what relief the petitioner is entitled?
6. Before the Tribunal the workman examined himself as W.W.I and Exs. W-1 to W-5 were marked. On the side of the management one S.K. Mohanram testified as M.W. 1 and Exs. M-1 to M-24 were marked. On point No. 1, the Tribunal held that the charge that the workman failed to report for duty at the main office on and after June 15, 1982 stands proved by the evidence given before the Tribunal. The Tribunal also found that the workman was bound to accept the transfer order which he had failed to do. In this context, the observation of the Tribunal at paragraph 7 of the award can be usefully noticed. It runs thus:
"He is bound to work in any section or office belonging to the respondent as provided in para 3 of Ex.M-1 so long as his salary or wage is not reduced and his rank is not affected"
Strangely enough, after so held against the workman, the Tribunal considered at some length on the habit of the workman to drink. The Tribunal while considering this aspect observed as follows:
"The main flaw in the petitioner's conduct and character is traceable to his love for alcohol. Such a man really needs sympathy of the Court with a view to rehabilitating him. Though absenteeism of a worker for a long duration may be viewed seriously, a stern approach need not be made in all cases and circumstances."
7. It is pertinent to notice that the drinking habit of the workman was not the subject matter of the charge or the enquiry. The Tribunal however, took note of the fact, which is not germane to the point at issue. The Tribunal, as rightly pointed out by the learned single Judge, has strangely took upon itself the task of rehabilitating the workman by imposing his services upon the management by observing as extracted above. We are unable to appreciate or countenance the approach made by the Tribunal, which had side tracked the issue involved, and has considered a totally irrelevant matter in order to help the workman. The direction so made by the Tribunal in our opinion, is wholly perverse, uncalled for and unwarranted. In our view, such a direction cannot be sustained on any legal grounds. We have gone through the entire award and the other documents filed before the Industrial Tribunal and also the pleadings filed in the writ petition. The workman, in our opinion, was not entitled to any sympathy in the hands of the Tribunal or this Court. The workman had been found guilty of misconduct after a fullfledged enquiry which had been properly held- Even as per the finding of the Tribunal, it is the workman who chose to stay away from the enquiry. In fact, the Tribunal held that the workman had without any valid reason remained absent and had failed to comply with the order of transfer. Therefore, the only course that should have been adopted by the Tribunal after recording these findings was to reject the claim of the workman and not to proceed any further by directing the management to reinstate the alcoholic workman, as found by the Tribunal, to be rehabilitated and thereby rewarding him for his improper behaviour and mis-conduct with full backwages for a period of more than ten years.
8. We are unable to agree with the learned counsel for the appellant/workman that the learned Judge ought not to have interfered with the indulgence shown by the Tribunal under Section 11-A of the Industrial Disputes Act. Likewise, we are unable to countenance the contention of the learned counsel for the appellant that the learned Judge has exceeded his jurisdiction in interfering with the award of the Tribunal. We have already observed that the direction given by the Tribunal directing the management to reinstate the workman is wholly perverse and uncalled for and that the said direction cannot be sustained on any legal principle. The learned Judge, in our view, is right in not considering or placing any reliance upon the workman's past conduct in deciding as to whether the dismissal of the workman by the management was in accordance with law. The charge against the workman having been established before the Enquiry Officer, the order of dismissal was fully justified. The Tribunal, in our opinion, would not have, as it purported to, converted the penalty into a reward by exercising power under Section 11-A of the Industrial Disputes Act. The misconduct alleged against the workman was made known to him in the charge memo. His explanation was duly obtained and the charges have been held to be proved after a fullfledged enquiry. Therefore, there is no infirmity or illegality or impropriety in the order of dismissal.
9. Yet another circumstances pointed out by the learned single Judge while allowing the writ petition is also to be noticed in order to appreciate the conduct of the workman. During the pendency of the Writ Petition, the learned Judge-directed the management to reinstate the workman pending adjudication of the matter in controversy in the writ petition. Even though the management had offered the workman a job in its main office, the workman did not choose to accept the offer and persisted in contending that he will report for duty only in the dock office and nowhere else. This only shows the adament and unrealistic attitude of the workman. The conduct of the workman in disobeying the direction is highly condemnable. As rightly pointed out by the learned single Judge, the impugned order cannot at all be sustained. In our opinion the learned Judge has rightly quashed the same and allowed the writ petition filed by the management. The order of the learned Judge does not call for any interference. No other points were argued.
10. In the result, the Writ Appeal is dismissed.