Madras High Court
Management vs The Presiding Officer on 3 February, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.02.2012 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.Nos.29591 of 2007 and 6562 of 2008 Management Tamil Nadu State Transport Corporation (Salem Division I ) Ltd., 12 Ramakrishna Road .. Petitioner in W.P.No.29591/2007/ Salem 7 2nd respondent in W.P.NO.6562/2008 Vs. 1. The Presiding Officer Labour Court Salem .. 1st respondent in both Writ Petitions 2. K.Viswanathan .. 2nd respondent in W.P.29591/2007/ Petitioner in W.P.NO.6562 of 2008 Prayer in W.P.29591/2007 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the 1st respondent in its Award made in I.D.No.491/2004 dated 1.11.2006. Prayer in W.P.6562/2008 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the 1st respondent in its Award made in I.D.No.491/2004 dated 1.11.2006 received by the petitioner in April 2007 and quash that portion of the award dated 1.11.2006 by which the1r holds the petitioner guilty of the charges and denies the relief of backwages and other attendant benefits and consequently direct the 2nd respondent to pay the petitioner backwages and other attendant benefits. For Petitioner in W.P.29591/2007 & for 2nd respondent in W.P.6562/2008 :: Mr.M.Ravi Bharathi For Petitioner in W.P.6562/2008 & for 2nd respondent in W.P.29591/2007 :: Mr.S.Ayyathurai COMMON ORDER
The 1st Writ Petition is filed by the State owned Transport Corporation having its headquarters at Salem challenging the award passed by the 1st respondent Labour Court in I.D.No.491 of 204 dated 1.11.2006. By the impugned award, the Labour Court directed reinstatement of the 2nd respondent workman without backwages and other attendant benefits but with continuity of service.
2. Initially in the Writ Petition, Notice regarding admission was ordered on 11.9.2007. Pending the Notice, an interim stay was granted with liberty to the 2nd respondent workman to file application for vacating the stay. Subsequently, the Writ Petition was admitted on 13.8.2008. Accordingly, the workman filed M.P.No.1 of 2008 seeking to vacate the interim order. The application for stay and vacate stay application were heard together and disposed of by a common order dated 13.8.2008. By the said order, this Court directed the petitioner management to pay last drawn wages in terms of Section 17-B of the Industrial Disputes Act and in other respects, the interim stay was made absolute.
3. Thereafter, the 2nd respondent workman filed a cross Writ Petition being W.P.No.6562 of 2008 challenging that portion of the Award denying him backwages and other attendant benefits. That Writ Petition was admitted on 17.3.2008 and directed to be tagged along with the earlier Writ Petition.
4. The management filed additional type set of papers containing the enquiry proceedings, which were filed before the Labour Court. For the sake of convenience, the parties in these Writ Petitions are mentioned as "management" and "workman" as the case may be.
5. The workman was employed under the management Corporation with effect from 15.7.1994 as a Driver. Lastly he was working at Omalur Depot. It is stated that on 23.11.2002 he was given a charge memo in respect of alleged incident that took place on 2.10.2002 in the Control Section. It was alleged that the workman misbehaved with the Conductors and the Controller as well as the Security Guard. The workman gave his explanation on 16.1.2003 stating that he belongs to trade union affiliated to Federation with CITU and he was the Treasurer of CITU and attached to Omalur Depot. When he went to sign in the Controller's Office, the office bearers of Anna Thozhir Sangam wanted Mr.Selvakumar to join in his trade union and sign the application form. The petitioner protested against their conduct by stating that under the Certified Standing Orders, they cannot do such things inside the Depot. Those persons told the workman to mind his own business stating that they belong to ruling party trade union and nothing can be done to them. The workman also stated that the charges levelled against him are false and it has been given only with a view to settle the scores of another rival trade union. Not satisfied with the explanation, an enquiry was directed to be conducted.
6. In the enquiry, on behalf of the management, one Selvakumar, Security Guard was examined as the first witness. In cross-examination, the following questions are asked to M.W.1 and the answer given by him are reproduced below:
Question: What was the reason for giving a complaint?
Answer : For abusing us as well for making a statement that local ruling party persons are creating hue and cry by conducting a meeting with the local Minister. For these reasons, I gave complaint.
7. The 2nd management witness is Mr.M.Palanisamy, who was a Conductor. For question No.6, he had answered as follows:
Question : When there are so many No.16 persons in the Depot why I should come to quarrel with you?
Answer : We are standing inside with our partymen with the subscription application forms, but he did not distribute to anyone but however he had brought the Security Guard and questioned us.
Question No.17: Is Mr.Ratnam senior to you?
Answer : Yes. During strike time since we drove the vehicles, a complaint under the Protection of Civil Right Act was given against us. Through the help of the Minister, it was cancelled. That is the reason why he spoke to us like this.
8. The management's 3rd witness Mr.Nanjappan was an Assistant. The workman's statement was also recorded and he was cross-examined by the management. The suggestion put to him that he misbehaved with the Security Guard, Controller and Conductor, was denied by him. On his behalf, a second witness S.Kannan, who was Conductor, was also examined. He supported the stand of the workman. The workman examined the 3rd witness V.Selvakumar, who was the Driver and he also supported the case of the workman and all these defence witnesses were cross-examined by the management.
9. The enquiry officer on the basis of the materials gave a report dated 13.2.2003 holding guilty of the charges. Curiously he recorded in his report that the Ruling party union was collecting subscriptions by getting signatures for check off system. Even this issue was raised, the charge sheeted workman did not produce any proof for such incident that had taken place inside the Depot. If any such incident has taken place, he should have reported to the Branch Manager.
10. Based on the enquiry report, the workman was asked to offer his remarks. The workman gave his reply dated 7.3.2003. Thereafter, a second show cause notice was given on 5.4.2003. The petitioner gave a further reply on 17.4.2003. Not satisfied with the reply and accepting the report of the enquiry officer, by order dated 18.8.2003, the workman was dismissed from service. Thereafter, he raised an industrial dispute before the Government Labour Officer,.
11. As the Conciliation Officer could not bring about the Mediation, he gave a failure report and on the strength of the failure report, he filed a claim statement before the Labour Court, Salem. The Labour Court, Salem registered the same as I.D.No.491 of 2004 and issued notice to the management.
12. The management filed a counter statement dated 'Nil' (September 2004). It also transpires that the management took action against one Govindaraj, who was the Driver of the same Branch for instigating the workers to go on illegal strike. He was dismissed from service by order dated 9.5.2005.
13. Before the Labour Court, on behalf of the workman, he filed two documents. First was the complaint given to the management dated 3.10.2002 and countersigned by the workman as a witness setting out the circumstances that took place on 2.10.2002 in the earlier office of the Depot. Second was the final modified punishment given to K.Govindaraj dated 9.5.2005. These documents were marked as E.M.1 and Ex.M.2 and there is no objection raised by the management in marking the documents.
14. On the side of the management, 16 documents were filed and marked as Ex.M.1 to Ex.M.16. The Labour Court on analysis of these documentary evidence held that the enquiry held against the workman was fair and proper and the objection raised by the workman was rejected.
15. The Labour Court found that the workman failed to prove the counter allegations made by him and there was no perversity in the findings of the enquiry officer. Therefore, it held that there was no necessity to set aside the enquiry report and the charges levelled against the workman were proved.
16. Though the Labour Court found that as per Ex.W.2, Govindaraj also belong to the same Union, who was also originally dismissed and subsequently got the punishment modified into one postponement of increment for a period of three years and therefore was restored to service. Therefore, the Labour Court held that the punishment against the workman was grossly disproportionate and it is a case of exercising power under Section 11-A of the Industrial Disputes Act and in that view of the matter, while directing reinstatement with continuity of service, denied backwages and other attendant benefits, by the impugned award dated 1.11.2006.
17. The contention of the management was that there was no scope for interfering with the punishment by exercising discretion under Section 11-A of the Industrial Disputes Act and the workman had been earlier suffered 8 penalties, which are listed out in the second show cause notice and therefore the action of the management was justified.
18. The contention raised by the workman in cross Writ Petition is that the Labour Court failed to set out the contradictions found in the evidence of the management and that the findings of the enquiry officer was not legal and proper and the alleged word of "abuse" was not set out in the charge memo. The action was initiated by the members of the trade union as their union was opposed to the workman's trade union. The punishment given to Govindaraj under Ex.W.2 as well as the punishment imposed on the workman was grossly discriminatory. The charges levelled against the workman as well as Govindaraj are same. Therefore, the Labour Court was not right in denying the backwages, whereas the said Govindaraj, Driver was also restored to service as per Ex.W.2.
19. The ground relating to the finding of the Labour Court that Ex.W.2, which is the final punishment given to Govindaraj was not comparable to the case of the workman, is not set out in the affidavit filed in support of the Writ Petition filed by the management. The contention of the workman that actually the words of "abuse" were not reflected in the chargmemo, is correct as reproduced above. As far as the enquiry proceedings is concerned, the Labour Court had not analysed the evidence let in during the enquiry. The Labour Court was wrong in stating that there was no complaint on the part of the workers belong to CITU and especially under Ex.W.1, specific allegations were made against the other rival unions. Therefore, to that extent, the Labour Court's finding was erroneous.
20. The Labour Court also wrong in stating that the workman did not substantiate the charges. It is not clear as to what the Labour Court found as unsubstantiated charges especially when the workman had examined himself and also examined two other witnesses and marked Ex.W.1 and Ex.2 documents. The fact as revealed is that the members of the rival union have asked workers for signing the check-off forms. This fact was found accepted by the management's witness, as reflected in the cross-examination referred to above. When in a particular incident, there were two rival versions, the Labour Court ought not to have rejected the case of the workers to hold as if there were no interunion rivalries and there was no incidents which had caused the workers to quarrel among themselves.
21. In the absence of the charge memo having not described the actual word of abuse made by the worker and in view of the fact that there were rival contentions in respect of the same incident, the enquiry officer's accepting one version alone clearly shows perversity in the findings. Once the Labour Court held that the punishment given to Govindaraj was only a three increment cut and the workman in this case had been dealt with the punishment of dismissal, then the original relief should have to be 'reinstatement with backwages'. The Labour Court did not give any reason for deprivation of the backwages. Since the management do not have any Certified Standing Orders and have adopted the Model Standing Orders framed by the State Government, under 3rd Proviso to Moral Standing Order No.17(4)(ii), for penalty of increment cut, workers are entitled to full wages for the period of suspension.
22. In view of the fact that these facts were not brought to the knowledge of the Labour Court and in the present case the petitioner had himself filed a cross Writ Petition questioning the findings in the domestic enquiry, this Court had an occasion to go through the enquiry proceedings and had culled out persons to show the real happenings on that day.
23. Under the circumstances, this Court do not find that portion of the award relating to "reinstatement of the worker" as erroneous. At the same time, inssfor as the denial of backwages is concerned, the Labour Court had not given any single reason. It had also not referred to the relevant Standing Orders. Hence, Writ Petition No.29591 of 2007 will stand dismissed. Writ Petition No.6562 of 2008 will stand allowed. However, the parties are allowed to bear their own costs.
03.02.2012 Index:Yes Internet:Yes ajr To
1. The Presiding Officer Labour Court Salem K.CHANDRU,J ajr W.P.Nos.29591 of 2007 and 6562 of 2008 03.02.2012