Madras High Court
N.Bhoopathi vs The Presiding Officer on 5 January, 2010
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.01.2010 CORAM: THE HONBLE MR. JUSTICE T.S.SIVAGNANAM W.P.Nos.4854 to 4856 of 1996 N.Bhoopathi ... Petitioner in W.P.No.4854 of 1996 R.Sivakumar ... Petitioner in W.P.No.4855 of 1996 V.Jeeva ... Petitioner in W.P.No.4856 of 1996 -vs- 1.The Presiding Officer, Labour Court, Salem. 2.Rasipuram Textiles Pvt. Ltd., 22-D, Kannaiah Naidu Street, Rasipuram 637 408. ... Respondents in all W.Ps. Common Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records pertaining to the awards dated 15.12.1994 of the 1st Respondent Labour Court, Salem and quash the same in so far as it relates to I.D.No.236/92, I.D.No.237/92 & I.D.No.238/92 and pass consequential directions to the 2nd respondent Mill to reinstate the petitioner with backwages, continuity of service and all other attendant benefits, award costs. For Petitioners : Mr.V.Stalin for Row & Reddy For Respondents : Mr. Raghavan for R2 COMMON O R D E R
By consent all the writ petitions are taken up together for disposal. The common feature in all these cases are that the petitioners have challenged an award of the Labour Court and all the petitioners were the employees of the second respondent textile mill. W.P.No.4854 of 1996 & 4855 of 1996 have been filed challenging a common award dated 15.12.1994 in I.D.Nos. 236/92 and 237/92. W.P.No.4856 of 1996 has been filed challenging the award in I.D.No.238/92 dated 15.12.1994. Since the facts in issue are identical, the matter were disposed off by a common order.
2. The learned counsel appearing for the petitioner would request the Court to first take up W.P.No.4855/96 and would state that the contention raised therein could be applied in the other two W.Ps also. The petitioner in W.P.No.4855/96 was employed as a clerk in the second respondent from 1995 on wards and he has stated that he was an office bearer of the Rasipuram Textiles Private Limited Staff Association. According to the petitioner, the Union raised a charted of demands relating to wages, permanency etc., and since there was no settlement, the staff went on strike from 11.11.1998 to 21.11.1998. It is stated by the petitioner that himself and the other two petitioners were quite active in the struggle. A charge sheet dated 17.11.1988 was served on the petitioner and simultaneously, he was placed under suspension, the charge memo contained 4 articles of charge, the petitioner submitted his reply on 21.11.1998, denying the charges. It is further stated that after the management received the reply, the petitioner was served with another additional charge sheet on 27.01.1989, which pertained to an incident on 12.11.1988, wherein the petitioner was alleged to have made certain complaints about two Directors to the other two Directors. The petitioner submitted his explanation on 30.01.1989. A common enquiry was conducted and the petitioner examined three witnesses on his side, which included the petitioner in other two writ petitioners and the management examined four witnesses on their side. The enquiry officer submitted his report on 13.07.1989, holding that all the charges stand proved against the petitioner.
3. The second show cause notice was issued on 26.07.1989, to which the petitioner submitted his reply and ultimately, the management by order dated 07.08.1989, dismissed the petitioner from service. The petitioner raised an Industrial Dispute, which was referred for adjudication before the first respondent in I.D.No.237/92, the Management resisted the petition by filing a counter statement and the matter was taken up for adjudication. The petitioner examined himself as WWI and marked Exhibits W1 to W27 and the management examined one witness MW-I and marked 41 documents from M1 to M41. Ultimately, the Labour Court by award dated 15.12.1994, dismissed the petition and upheld the order of dismissal. Aggrieved by the same, the petitioner has filed the above writ petition.
4. The petitioner in W.P.No.4854 of 1996 was working as a clerk in the second respondent Textile Mill from 12.12.1882 onwards and for similar allegation as in the earlier case, a charge sheet was issued on 17.11.1988 and he was also simultaneously placed under suspension. He submitted his reply on 21.11.1988 and thereafter, the management served an additional charge sheet on 21.01.1989 about the incident on 12.11.1988. The petitioner submitted his explanation on 08.02.1989 and an enquiry was conducted and the enquiry officer submitted his report dated 13.07.1989. Thereafter, second show cause notice was issued on 26.07.1989 and petitioner submitted his reply on 29.07.1989 and subsequently, the management by order dated 07.08.1989, dismissed the petitioner from service. The petitioner raised an Industrial Dispute, which was referred for adjudication to the first respondent in I.D.No.236/92 and the same was adjudicated along with I.D.No.237/92 (impugned in W.P.No.4855/96) and the Labour Court by a common award upheld the order of dismissal passed by the management.
5. The petitioner in W.P.No.4856/96 was employed as a driver in the second respondent Textile Mill, for the same incident on 11.11.1988, a charge sheet was served on the petitioner on 17.11.1988, containing four articles were charged. He had submitted his explanation dated 25.11.1988, and after the receipt of the explanation an additional charge sheet dated 27.01.1989 was served alleging four more charges. An explanation was submitted by the petitioner on 08.02.1989 and thereafter, domestic enquiry was conducted and the enquiry officer by report dated 15.07.1989, held that all the charges were proved. The second show cause notice was issued on 26.07.1989 and the petitioner submitted his reply on 31.07.1989. The management not being satisfied with the reply and considering the case, dismissed the petitioner from service, by order dated 07.08.1989. Thereafter, the petitioner raised an Industrial Dispute in I.D.No.238/92, before the first respondent, this was resisted by the management, by filing a counter statement, before the Labour Court, the petitioner examined himself as WW-1 and marked one document as W-1. The management examined one Govindarajan as MW1 and marked 21 documents in M1- 21. The Labour Court by award dated 15.12.1994 upheld the order of dismissal and dismissed the I.D, this award dated 15.12.1994 is impugned in the writ petition.
6. The learned counsel appearing for the petitioners would assail correctness of the awards, by placing reliance on the various findings rendered by the enquiry officer and pointing out various inconsistencies in the disciplinary proceedings, which were conducted and submitting that the punishment of dismissal from service was not warranted. The learned counsel would submit that the first charge was that on 11.11.1988, when the strike commenced, the petitioner had reported only at 11.30am, signed the attendance register and left locking the office. The learned counsel would submit during the course of enquiry that the management witness had stated that the office boy had locked the door and there is inconsistencies in the evidence and without examining the office boy, the enquiry officer ought not to have held that the first charges were proved.
7. As regards, the second charge, which alleged that the petitioner and the employees went on illegal strike from 11.11.1988 and on 13.11.1988, during the third shift, the petitioner had instigated, the second shift employees to leave their machines running and come out of the factory thereby causing damage to the machinery. The learned counsel would submit the question of assessing damages could be done only if, it is conclusively established by the management and there was no document produced to prove the alleged loss.
8. Next, the learned counsel would contend that the third charge was that the petitioner and others have attacked the security guards, on this aspect, the learned counsel placed heavy reliance on the findings of the enquiry officer by pointing out the answers elicited from the management witnesses, during the cross examination and would contend that the security guards did not say in their deposition that they were beaten and in the absence of any evidence, the findings of guilt as recorded by the enquiry officer is erroneous. The learned counsel would further submit that the employee cannot be called upon to disprove the charges and the onus is on the management to prove the charge. Likewise, in respect of the fourth charge, which related the preventing a lorry bringing cotton from entering the Mill premises. The learned counsel would submit that the lorry driver was not examined and therefore, the enquiry officer came to a erroneous conclusion that the said charge was proved.
9. That apart, the learned counsel would submit that the additional charge memo itself was actuated by bias and an after thought, after receiving the explanation to the first charge memo. The learned counsel would further submit that the allegations in the additional charge sheet were not proved against the petitioners and in respect of the petitioner in W.P.No.4856/96, the enquiry officer disbelieved the document produced, namely the trip sheet to support the stand taken by the petitioner that he was not available during that point of time. The learned counsel further contend that the Labour Court without independently examining the points raised, mechanically extracted the findings of the enquiry officer in the enquiry report and dismissed the petition. The petitioner would further submit that this was the case of victimisation, since the petitioners were involved in trade union activities.
10. The learned counsel relied upon the following decisions for the propositions/contentions as noted hereunder:-
i) National Carbon Company, Madras Vs. Labour Court, Madras and another [1987 1 LLN 405] & Virudhachalam Co-Op. Urban Bank Ltd Vs. Labour Court, Cuddalore and another [1995 2 LLJ 173] On the scope of interference in the award of the labour court under Article 226 of the Constitution of India
ii) Coimbatore and Periyar District Dravida Panchalai Thozilalar Munnettra Sangam (represented by its Secretary) Vs. Management of Pionner Mills, Ltd., and another [2001 3 LLN 269, 1989 2LLN 319] & R.Chandran Vs. Additional Director General of Police, Commissioner of Police, Chennai and others [1999 4 LLN 398] on the scope of Section 11A and in the matter of discrimination in nature of punishment awarded.
iii) Anil Kumar Vs. Presiding Officer and Others [1986 1 LLJ 101 (SC)] on the aspect that the disciplinary enquiry has to be a quashing judicial enquiry and the enquiry officer should give reasons.
iv) Glaxo Laboratories (I) Limited Vs. Labour Court, Meerut and others [1984 1 LLJ 16 (SC)] for the proposition, what constitutes misconduct committed within the premises of the establishment or the vicinity thereof.
Based on the above submissions, the learned counsel appearing for the petitioner would submit that the awards of the Labour Court deserve interference and the writ petitions are liable to be allowed.
11. Per contra, the learned counsel appearing for the second respondent would contend that the scope of interference by this Court under Article 226 of the Constitution of India is very limited inasmuch as the materials, which were available before the enquiry officer was appreciated by the Labour Court and the Labour Court came to a conclusion that the order of punishment does not require interference. In such circumstances, this Court would not re-appreciate the evidence, which was already appreciated by the Labour Court to come to such a conclusion. The learned counsel would further submit that the adequacy of the material, which was available before the enquiry officer as well as the Labour Court cannot be the basis of interference by this Court under Article 226. Further, the Labour Court appreciated the findings and came to a independent conclusion and inconsistency in the demeanor of the witnesses cannot be a ground for impeaching the findings. The learned counsel by placing reliance upon the various portions of the award submitted that the Labour Court in paragraph 10 of the award, after appreciating the evidence on record, recorded a finding of fact that the workman reported only at 11.30am. According to the learned counsel for the second respondent, this finding is sufficient to establish the charge against the workman. Further, the learned counsel would submit that the Managing Director was examined as MW-1 and he has clearly deposed as to the manner in which the incident occurred, which was brought out by the enquiry officer and considered by the Labour Court by recording a specific finding. Learned counsel would further submit that inspite of recording such finding, the Labour Court proceeded to examine as to whether the power under Section 11A of the Industrial Disputes Act has to be exercised and found that the facts of the case do not deserve examination under Section 11A . Therefore, the learned counsel would submit that there are abundant material to establish that the workmen were guilty of charges and the charge against the workman is serious and therefore, this Court should decline to interfere in such an award, which has given cogent.
12. The learned counsel for the second respondent relied upon the decision of this Court in Solar Works, Madras (by proprietor, K.S. Subrahmanya Ayyar) Vs. Their Workman (by secretary, Madras Press Labour Union) and another [1968 1 LLJ 765], regarding the scope of adjudication into the validity of the dismissal of the worker for participation in an illegal strike.
13. I have carefully considered the submissions on either side and perused the materials available on record.
14. The charge against the three workman related to riotous and disorderly behaviour during the working hours in the factory and causing damage to the machinery, threatening abusing and intimidating and assaulting, the watchman preventing the lorry carrying cotton from entering the Mill, preventive another driver from discharging his duties and such other matters. Admittedly, the workmen went on strike between 11.11.1988 to 21.11.1988. The workmen on receipt of the charge memo and an additional charge memo have submitted their explanation and participated in the domestic enquiry, witnesses were examined on either side, cross examined and documents were also marked. There is no complaint from the workmen about the manner in which the enquiry was conducted. The management having accepted the findings of the enquiry officer had dismissed the three workman. The validity of these orders came up for adjudication before the first respondent. Before the first respondent, both the workman as well as the management examined their witnesses and marked documents. The Labour Court after considering the entire factual aspects and also after considering the law on the subject, upheld the punishment awarded to the workmen. The contention raised on behalf of the petitioners before this Court primarily is with regard to the manner in which the various witnesses on the side of the management have deposed before the enquiry officer, the findings of the enquiry officer on such deposition and the ultimate conclusion of the Labour Court, while appreciating the deposition of the witnesses recorded by the enquiry officer as well as by the Labour Court and appreciating the documents, which were before the enquiry officer and the documents, which were marked before the Labour Court.
15. Therefore, the endeavour of the learned counsel for the petitioners was that there was inconsistency in the deposition of various witnesses and if such inconsistencies are taken into consideration, the enquiry officer ought not to have recorded a finding of guilt and this fact was not properly considered by the Labour Court. Therefore, the net result of the submission on behalf of the petitioners are with a plea before this Court to re-appreciate the evidence both in the form of oral and documentary evidence before the enquiry officer and the Labour Court. Therefore, it has become necessary to consider the preliminary objection raised by the learned counsel for the second respondent, as regards the scope of interference by this Court. After considering the entire facts and circumstances and perusing the report of the enquiry officer as well as the impugned awards, it has to be necessarily stated that the enquiry officer's report as well as the Labour Court have recorded reasons for coming to their respective conclusion. In such circumstances, if the law on the subject is looked into the Hon'ble Supreme Court has added a word of caution in the scope of interference in such matters.
16. In A.P.SRTC Vs. Raghuda Siva Sankar Prasad [2007 1 SCC 222], the Hon'ble Supreme Court held as follows:-
"17. Likewise, the learned Judges of the Division Bench also failed to appreciate that once the Labour Court in its award held removal from service by taking into consideration the entire facts and circumstances of the case, it does not deserve interference and that the High Court in its extraordinary jurisdiction under Article 226 of the Constitution could not have interfered with the said orders of the removal.
22. It is also not open to the tribunal and courts to substitute their subjective opinion in place of the one arrived at the domestic tribunal. In the instance case, the opinion arrived at by the Corporation was rightly accepted by the Tribunal but not by the Court. We, therefore, hold that the order of reinstatement passed by the Single Judge and the Division Bench of the High Court is contrary to the law on the basis of a catena of decisions of this Court. In such cases, there is no place for generosity or sympathy on the part of the Judicial forums for interfering with the quantum of punishment of removal which cannot be justified. Similarly, the High Court can modify the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved."
17. Therefore, if the jurisdiction vested with the Labour Court has been exercised judicially and fairly the award does not require interference. Further, the Hon'ble Supreme Court in Sher Bahadur Vs. Union of India and others, [2002 7 SCC 142], held that sufficiency of evidence in such matters postulates existence of some evidence, which links the charged officer with the misconduct alleged against him. It would be entirely a different aspect, if there is no evidence. Therefore, it has to be held that based on the evidence, which was placed before the enquiry officer, the enquiry officer appreciated the same and came to a conclusion that the charges were proved. This report apart from other oral and documentary evidence, which was available before the Labour Court was considered and the petition came to be dismissed. It is to be noted that there is no allegation of any procedural violation in which any of the substantive rights of the petitioners were affected. In such circumstances, this Court cannot be called upon to re-appreciate the evidence and come to a different conclusion on facts. The decisions relied upon by the petitioner in the case of Glaxo Laboratories (I) Limited, referred supra had stated that what constitutes establishment or its vicinity would depends on the facts and circumstances of the each case. From the facts of the present case, it can be seen that the instant and the illegal strike had occurred within the premises and this Court cannot make rowing enquiry as to whether the petitioners chased the security guards from the factory premises to elsewhere or they were chased from a different location.
18. The learned counsel appearing for the petitioner had placed reliance on the decisions of this Court in the matter of Virudhachalam Co-Op. Urban Bank Ltd and Coimbatore and Periyar District Dravida Panchalai Thozilalar Munnettra Sangam on the scope of Section 11A. It is relevant to point out the juncture that in the present case the Labour Court after holding that there was no error in the order of dismissal, in paragraph 20 analyzed the question as to whether the punishment could be interfered exercising the power under Section 11A of the Act. There again the Labour Court considered the evidence available and after narrating in detail about the incidents, which had taken place came to a conclusion that the punishment cannot be interfered under Section 11A. The ratio of the Hon'ble Supreme Court on the scope of interference in such matters as stated supra in the case of A.P.SRTC, states that the High Court can modify the punishment under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved. In fact the Hon'ble Supreme Court has held that there is no place for generosity or sympathy on the part of the Judicial forums for interfering with the quantum of punishment of removal. Further, the Hon'ble Supreme Court has held that it has not open to the Court to substitute their opinion in the place of one arrived at by the domestic Tribunal. In the instant case apart from the findings recorded by the enquiry officer, the Labour Court also held that the punishment of dismissal does not warrant interference. In such circumstances, the impugned awards cannot be interfered by this Court. By taking into consideration, the facts of the case, it is to be noted that the charges against the petitioners are serious in nature witnesses have deposed on either side and they have been cross examined and documents have also been marked. The Labour Court in paragraph 10 & 12 of the award has recorded specific finding of facts. Similarly, in respect of the other charges in paragraph 17 & 18, the Labour Court has factually come to a conclusion that the charges have been proved. On the question of victimisation, the Labour Court in paragraph 18 of the award has rejected the contention by holding that in the total absence of anything to indicate regarding strained relationship between worker and management, it is impossible to accept the allegation of victimisation based on the allegation of the workman. As already stated that the aspect regarding whether the punishment has to be interfered has also been considered by the Labour Court in the penultimate paragraph of the award.
19. For all the above reasons, this Court finds that there is no error, which is apparent on the fact of the impugned awards, the awards do not suffer from any perversity or illegality and the punishment of dismissal imposed by the management as upheld by the Labour Court cannot be held to be disproportionate to the proved charges and there is no material placed to establish that the punishment is either excessive or shocks conscious of the Court and therefore, the impugned awards do not call for any interference.
20. In the result, the writ petition fails and they are dismissed. However, there shall be no order as to cost.
pbn To The Presiding Officer, Labour Court, Salem