Madras High Court
The Management Of Associated Cement ... vs The Presiding Officer Labour Court ... on 5 June, 2002
Equivalent citations: [2002(95)FLR1188]
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER
V. Kanagaraj, J.
1. Writ Petition in W.P.No. 5732/1996 has been filed by the management praying to issue a Writ of Certiorari calling for the records of the first respondent in I.D.No. 147/93 and quash the Award dated 23-08-1995.
Writ Petition in W.P.No. 9340/1997 has been filed by the worker praying to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the order of the first respondent made in I.D.No. 147/93, dated 22-03-1995 in connection with the preliminary issue raised and also the award passed by the first respondent in I.D.No. 147/93, dated 23-08-1995 to the extent of re-instatement of the petitioner without backwages published in the Tamil Nadu Government Gazette Part-II, Section 2, dated 31-01-1996 and quash the first respondent's order in the preliminary issue dated 22-03-1995 and award made in I.D. dated 23-08-1995 without backwages and direct the 2nd respondent, Management, to pay the backwages and other attendant benefits due and payable to the petitioner till superannuation and to pass award to re-instate the petitioner with backwages and other attendant benefits.
The Petitioner/Management in W.P.No. 5732 of 1996 is the second respondent in W.P.No. 9340/1997. The Presiding Officer is the first respondent in both the petition. The second respondent in W.P.No. 5732 of 1996 is the petitioner in W.P.No. 9340/1997.
2. In the affidavit filed in support of the Writ Petition in W.P.No. 5732 of 1996, the petitioner/Management would submit that it is having a Cement Factory at Madukkarai where it had employed 1100 workmen; that about 800 quarters for the employees were constructed; that the quarters are allotted to employees by way of licence and the terms of the license are reduced to writing; that one of the terms of the license is that the licensee should not maintain any animal or fowl; that the second respondent was employed as a clerk in the petitioner company and he was allotted a quarters on 16-11-1974, after he duly executing a license agreement; that the second respondent was keeping a ferocious dog in his quarters; that on 29-12-1990 at about 11.30 a.m., when another Clerk K.Velayudhan, who was also living in the quarters was walking on the road, the two daughters of the second respondent along with his dog were standing near their house and as Velayudhan came near the second respondent's house, the dog pounced on him and caused serious injuries; that on the basis of the complaint given by Velayudhan, on 19-01-1991 a show cause notice was issued to the second respondent referring to the incident on 29-12-1990; that on 26-01-1991, the petitioner gave a reply in which he admitted the presence of the dog in his quarters and the dog having bitten Velayudhan and that it was necessary to keep a dog for security; that on 26-02-1991, the petitioner wrote to the second respondent stating that the explanation of the petitioner was not convincing and that if he continued to keep the dog in his quarters, the petitioner would have to vacate the quarters; that on 6-3-1991, as the Second Respondent addressed a letter to the General Manager making certain allegations as mentioned in the petition, he was asked to appear for a personal hearing before the General Manager to substantiate his complaint; that as per the directions of the General Manager, on 11-03-1991 when the Manager (Finance) served a copy of the Standing Orders and the copy of the license agreement on the second respondent, he refused to receive the documents; that the second respondent was asked to appear before the Manager (Commercial) for an enquiry on 4-4-1991; that on 27-04-1991, a chargesheet was issued to the second respondent for his refusal to receive the communication as well as for abusing the Manager (Personnel); that altogether three charge sheets were issued to the second respondent and he was asked to attend an enquiry; that since all the charges against the second respondent were proved, he was dismissed from the service on 10-08-1992; that having aggrieved the second respondent raised an industrial dispute challenging his dismissal and the dispute was taken to the first respondent for adjudication; that the first respondent has directed the reinstatement of the second respondent without backwages. On such facts, the petitioner/management would pray to the relief of quashing the Award dated 23/8/1995 made in I.D.No.147/1993 by the first respondent.
3. In the affidavit filed in support of the Writ Petition in W.P.No. 9340 of 1997, the petitioner who is the employee of the petitioner/Management in W.P.No.5732 of 1996 would submit that he had been serving as Grade-V since 1963 under the second respondent and he was given a meritorious certificate; that since the petitioner took up the matter of engaging male members to verify the electricity to the General Manager to cut that system, the 2nd Respondent/Management got angry with him and fixed him in the Grade-I, though he was attending the job applicable to Grade-V; that having aggrieved, the petitioner raised the dispute under Section 2-K of the I.D.Act; that the petitioner thereafter filed Writ Petition in W.P.No. 5735 of 1986 against the decision of the State Government's failure to refer the dispute to the Labour Court to decide his grievances with regard to fixing the grade; that the 2nd Respondent issued show cause notice dated 19-01-1991 alleging that the dog of the petitioner had bitten one Velayutham and asking explanation from him as to why, he should not be evicted from the quarters, for which the petitioner submitted his detailed explanation vide his letter dated 26-09-1991; that thereafter the petitioner was again issued with another show cause notice, for which also the petitioner offered reply; that ultimately the petitioner was issued with 6 show cause notice, pointing out certain explanations in his reply; that the petitioner was called for an enquiry; that in the enquiry Senior Welfare Officer was examined as M.W.1 and he cross examined the witness; that when the enquiry was taken up on 21-10-1991, the petitioner was asked to remain outside the enquiry room, when he sought for an adjournment; that due to his illness the petitioner wrote a letter dated 29-10-1991 to adjourn the enquiry till 11-11-1991; that after the completion of 9 months, the 2nd Respondent issued an order of dismissal dated 10-08-1992 by issuing a copy of the finding of the Enquiry Officer two days prior to the date of dismissal; that since the 2nd Respondent was not prepared to consider the request of the petitioner, he raised the Industrial dispute before the Labour Court alleging that the Order of dismissal is illegal; that the first respondent has directed the reinstatement of the second respondent without backwages; that the award without backwages is not accordance with the principles of Law laid down by the Court and Supreme Court; that the 2nd Respondent having aggrieved by the award passed by the 1st Respondent, had filed the W.P.No. 5732/96 challenging the award passed by the 1st Respondent and obtained stay of the operation of the first respondent; that the 2nd Respondent paid the salary and other benefits from the date of award i.e, 23-08-1995 till his superannuating on 31-07-1996 , but however he was not re-instated in service as per the award of the Labour Court; that having aggrieved against the order of the Labour Court dated 22-03-1995 in the preliminary issue and also the final award passed in the dispute raised by the petitioner on 23-08-1995, the petitioner has come forward to file the above Writ Petition praying to the relief as extracted supra.
4. In the counter affidavit filed by the second respondent in W.P.No. 5732 of 1996, he would admit the allegation made by the petitioner, except that those are specifically admitted therein. According to the second respondent, the award passed under Sec. 11-A of the I.D. Act is not maintainable in view of the ruling of the Apex Court reported in M/S. FIRE STONE TYRE AND RUBBER & CO. INDIA LIMITED Vs. THE MANAGEMENT AND OTHERS .
5. During arguments, the learned counsel for both would emphasize their own pleadings in their respective writ petitions with no additional materials placed on record excepting to quote from different judgments already delivered by the upper forums of law and therefore, this Court is left with no choice but to decide the above writ petitions on the pleadings of the parties, having regard to the materials placed on record and in the light of the decided cases cited by both parties. On the part of the worker and the petitioner in W.P.No. 9340 of 1997, the following judgments would be cited respectively reported in a. TRAVANCORE - COCHIN CHEMICALS CO-OPERATIVE SOCIETY, Ltd AND LABOUR COURT, ERNAKULAM (1989 KERALA - 1 LLN - 67) b. SCOOTER INDIA LIMITED, LUCKNOW Vs LABOUR COURT, LUCKNOW (1989 L & I.C. - 1043) c. VED PRAKASH GUPTA Vs M/s DELTON CABLE INDIA (P) Ltd d. THE MANAGEMENT SRI AYYANAR SPINNING AND WEAVING MILLS LTD., MALLANGINAR, RAMANATHAPURAM DISTRICT Vs PRESIDING OFFICER, LABOUR COURT, MADURAI AND OTHERS (1987 WLR - 186) e. IN CIVIL APPEAL No.1461 OF 1972: THE WORKMENT OF M/s FIRESTONE TYRE & RUBBER CO. OF INDIA P.LTD. Vs THE MANAGEMENT AND OTHERS.
Likewise, on the part of the Management and petitioner in W.P.No.5732 of 1996, they would also cite two judgments respectively reported in a. THE MANAGEMENT OF TAFE AND R.VENKATARAMAN AND OTHERS (1990 II LLJ - 468) b. KERALA SOLVENT EXTRACTIONS LTD., AND A.UNNIKRISHNAN AND ANOTHER (94 II LLJ - 888)
6. It could be assessed that from out of the two writ petitions filed as above, the first one in W.P.No.5732 of 1996 has been filed by the management challenging the order passed in I.D.No 147 of 1993, wherein the labour Court ordered reinstatement of the employee namely M.Nagarajan but without backwages. It is this employee who has come forward to file the other W.P.No.9340 of 1997 against the Presiding Officer, Labour Court and the Management on two grounds:
(i). the first one testifying the validity of the order of the labour Court made in an application filed on the part of the employee in connection with the preliminary issue raised on lack of opportunity in the enquiry proceeding which was dismissed by the labour Court as per its order dated 22/3/1995 made in I.D.No.147 of 1993 and
(ii). the second relief against the award passed by the first respondent labour Court in the same I.D.No.147 of 1993 dated 23/8/1995 to the extent of ordering the reinstatement without backwages and to quash both the said order and the award disallowing the back wages and further to direct the second respondent Management to pay the back wages and the other attendant benefits due and payable to the petitioner till superannuation and thus to pass the award for reinstatement with backwages and the other attendant benefits. Each of the petitioners would file the writ petitions respectively not only against the labour Court as a formal party but also against each other as respondents.
7. In this scenario, this Court has to advert to the facts of the case which has to be done on two aspects. The first one covering the order passed by the labour Court on 22/3/1995 on the preliminary issue raised by the employee pertaining to lack of opportunity in the disciplinary proceeding held by the Management and the award passed by the labour Court as per its order dated 23/8/1995 ordering reinstatement of the employee without backwages, though they are one and the same industrial dispute in I.D.No.147 of 1993.
8. So far as it is concerned with the order passed by the labour Court dated 22/3/1995 dealing with the preliminary issue pertaining to lack of opportunity, the employee would submit that he was serving as Grade V since 1963 under the Management and he was given a meritorious certificate; that on an issue raised on the part of the employee with the Management regarding the system of engaging male members to verify the electricity, the Management got estranged from the employee and started acting in an indifferent manner with him, resulting in fixing him in Grade - I, though he was attending the job applicable to grade V; that taking advantage of his dog having bitten one Velayutham, a show cause notice was issued seeking explanation as to why he should not be evicted from the quarters and in spite of his explanation dated 26/9/91, an enquiry was instituted with the Senior Welfare Officer appointed as an Enquiry Officer.
9. The further case of the petitioner/employee is that an enquiry was taken up on 26/9/1991; that during the course of enquiry on account of illness on 29/10/1991, the petitioner sought for an adjournment of the enquiry till 11/11/1991 and 9 months thereafter, a dismissal order dated 10/8/1992 was issued based on the finding of the Enquiry Officer given a couple of days before the dismissal order; that against the dismissal order erased the industrial dispute in which the labour Court though held that the order of dismissal was illegal and directed the respondent/Management to reinstate the employee still the backwages were not ordered to be paid since the order was only for reinstatement without backwages.
10. So far as the Management is concerned, it would come forward to allege that on 11/3/1991, the standing orders pertaining to the residents in the locality have been furnished but it was not accepted by the employee; that therefore, an intimation was sent to the employee revealing that on 4/4/1991, an enquiry proceeding would be held but the employee did not receive that communication also, as a result of which on 27/4/1991, another communication was sent as per the standing orders No. 19 (v), 19 (xii), 19 (xi), 19 (1) and 19 (v) - (a) & (b) seeking explanation but the petitioner had refused to accept these notices in spite of the same having been sent by post and therefore, the management would come forward to establish that in spite of many opportunities afforded, the employee deliberately evaded responsibility and therefore, the management is not in any manner responsible for any lack of opportunity; that however, ultimately the enquiry was held and two witnesses have been examined on the part of the Management in the enquiry held on 17/9/1991 after several adjournments in which one Babu Alexander appeared as the witness and for the cross examinations by the employee it was adjourned on 19/9/91 and at the request of the employee, it was again adjourned on 25/9/91 and for further cross, it was posted on 26/9/1991 and thereafter, on 28/9/1991 and at the request of the employee again adjourned to 3/10/1991 and 8/10/1991 and ultimately on 21/10/1991 when the employee appeared to express his inability to participate in the proceedings on account of ill-health and sought for further adjournment but rejecting his plea, two more witnesses were examined on that date and again on 28/9/1991, four more witnesses were examined in chief and then the management side was closed; that so far as it was concerned with the oral evidence during the course of this on the part of the Management, 41 documents have been marked as Exs.M.1 to M.41.
11. The labour Court having pointed out those documents and having gone into the entire proceedings would find that there had been absolutely no lack of opportunity found on the part of the Management and in spite of full opportunity having been afforded, the employee did not make use of all those given for him and therefore, would find no lack of opportunity had been done in violation of the principles of natural justice and hence, the preliminary objections raised on the part of the employee would be rejected by the labour Court further posting the case for further hearing on 6/4/1995.
12. Thereafter, holding an enquiry into the facts and circumstances of the case and in appreciation of the evidence placed on record by documentary evidence with no oral evidence before the labour Court and appreciating those evidence placed on record, 10 documents has been marked as Exs.W.1. to W.10 respectively and further appreciating 41 documents submitted on the part of the management as Exs.M.1 to M.41.
13. In consideration of the above documents and in the light of the pleadings by parties as aforementioned the labour Court would frame two points for consideration namely:
(i). whether the punishment commensurate with the charges framed? and
(ii). whether the petitioner is entitled to the relief sought for?
14. With these points framed and with no mention of the charges framed in the enquiry proceeding, the lower Court has proceeded with the act of irregularity committed on the part of the employee in keeping a dog and letting loose the same so as to bite one Velayutham at the place of his residence which is the quarters provided by the Management of rental basis on ground that there is a rule in the agreement to the effect that no one should either keep an animal or a bird in the premises so as to endanger the life and safety of others. Though the incident of a dog kept by the employee is said to be for his personal safety and the same having bitten one Velayutham are the admitted facts. However, in spite of there being a rule or condition prohibiting such an act of keeping an animal in the quarters, the said Velayutham himself is also said to have kept a dog with him as admitted on his part in evidence for which, no action seems to have been either initiated or any punishment awarded much less conducting an enquiry against him but only regarding the petitioner such an action is initiated which is a clear discrimination shown by the Management towards the petitioner/employee which is opposed to the legal principles.
15. Further, the labour Court does not seem to have cared the least to go into the charges framed against the petitioner/employee in the enquiry proceeding nor has it extracted and discussed those charges in its entire proceeding which has been conveniently neglected. On the contrary as extracted above, it has framed its own points for consideration which have no bearing on the charges and therefore, the labour Court cannot at all be said to have gone into the actual subject to arrive at a valid decision. Nor the labour Court has gone into the vital aspect of such an irregularity that had occurred at the residential area away from the sphere of the official functioning so far as the employment of the employee in the Management is concerned wherein the employee admittedly by the Management has not committed any irregularity but the incident is said to have happened at the place of residents which is alleged to have been against the conditions of agreement so far as the allotment of the residential flat is concerned. If at all any violation of the condition had taken place in the manner alleged, the employee could only be evicted from out of the flat, which could be a punishment commensurate the violation of the condition imposed for occupation of the quarters and under no stretch of imagination, the punishment could go upto dismissal from service which is disproportionate and shocking and therefore, the conclusion arrived at on the part of the labour Court particularly based on the arguments in para number 6 , wherein the labour Court has rightly discussed that it could be proper to have thought of only inflicting minor punishment such as reduction in the increment or evicting him from his occupation would be appropriate and the punishment of dismissal is not at all either reasonable or legal. Moreover, for arriving at the conclusion not to grant the backwages in para number 7, absolutely no discussion has been held nor any reason assigned and therefore, refusal to grant the backwages is neither necessary nor acceptable especially when the Court arrives at the conclusion that the dismissal is wrong and it is proper to reinstate the delinquent in the service in which event the backwages will automatically flow in consonance with the principle of labour law. Unless very strong reasons are assigned for having not allowed the backwages, the labour Court is not in any manner entitled to deny the backwages for the employee while setting aside the dismissal order and reinstating him in service. Therefore, the conclusion arrived at by the labour Court for the second point is not only bereft of reasons but also improper so far as the backwages are denied and therefore, this Court while ordering not to interfere with the first relief sought for so far as it is concerned with the order of the labour Court dated 22/3/1995, regarding the preliminary issue raised on the part of the employee is inclined to set aside the award passed by the labour Court so far as the denial of backwages pertaining to the second relief sought for is concerned and hence, the following orders.
In result,
(i). W.P.No. 9340 of 1997 is partly allowed.
(ii). The order dated 22/3/1995 passed in I.D.No.147 of 1993 so far as it is concerned with setting aside the dismissal order and reinstating the employee, it is confirmed.
(iii). The award dated 23/8/1995 made in I.D.No.147 of 1993 by the labour Court, Coimbatore, regarding the denial of backwages is set aside. Instead, the award is modified to the effect of reinstatement of the employee in service with all back wages and attendant benefits as it is prayed for in the second relief of the writ petition by the employee and therefore, this aspect of denial of backwages in the award dated 23/8/1995 of the labour Court, Coimbatore is quashed.
(iv). W.P.No.5732 of 1996 filed by the Management is dismissed.
(v). There shall be no order as to costs.
(vi). Consequently, the connected W.M.P. No. 8987 of 1996 is closed.