Karnataka High Court
G.V. Vishwanath vs Management Of Himalaya Drug Company on 6 October, 2005
Equivalent citations: 2006(2)KARLJ47, 2006 LAB. I. C. 268, 2006 (1) AJHAR (NOC) 180 (KAR), 2006 (1) ALL LJ NOC 169, 2005 AIR - KANT. H. C. R. 3063, (2006) 2 KANT LJ 47, (2006) 1 LAB LN 605, 2006 LABLR 311, (2006) 1 CURLR 1060, (2006) 109 FACLR 987, 2006 (1) KCCR SN 53 (KAR)
Author: R. Gururajan
Bench: R. Gururajan
ORDER R. Gururajan, J.
1. The petitioner-Vishwanath is before me challenging the order and award of the Labour Court dated 19-6-2002, Annexure-P and 1-7-2004, Annexure- PI, in case No. ID 160 of 1997.
2. Facts in brief are as under:
The petitioner is a confirmed employee of respondent-management. One Miss. Jayanthi lodged a complaint against the petitioner stating therein that the petitioner misbehaved with her and she brought the same to the notice of one Mr. Mitra. The petitioner was suspended pending an enquiry. Thereafter, he was issued with a charge-sheet-cum-show-cause notice for having committed misconducts under Standing Order under Clause 21(6), 21(4), 21(17), 21(32), 21(54) and 21(55), The petitioner submitted a detailed explanation denying the charges. Thereafter, an Enquiry Officer was appointed by the management in the matter. The petitioner participated in the proceedings. Enquiry Officer after conducting the enquiry submitted his findings to the management. The management accepted the findings and thereafter issued a show-cause notice in the matter. The petitioner replied to the show-cause notice issued by the management. The management thereafter issued an order of dismissal dated 2-6-1997, The said dismissal order was challenged by the petitioner under Section 10(4-A) of the Industrial Disputes Act, 1947 by way of a claim petition before the first Additional Labour Court, Bangalore in ID No. 160 of 1997. Parties entered appearance. They filed their respective statements. The Labour Court considered the validity of the domestic enquiry in the preliminary issue. The same was answered in favour of the management. The Labour Court thereafter heard the parties on the merits of the matter. After hearing, the Labour Court has chosened to confirm the punishment order in the award. The petitioner is challenging the preliminary order of enquiry and the subsequent award in this petition.
3. Respondent has filed caveat and they have entered appearance. The petitioner thereafter filed an application under Order 6, Rule 17 of the CPC read with Article 226 of the Constitution of India. IA is allowed. The petitioner is permitted to raise additional grounds. The petitioner is to file the amended petition, if not already filed.
4. Sri M.R. Rajagopal, learned Counsel is at great pains to show before me that the enquiry conducted by the respondent suffers from various material irregularities so also illegalities. According to him, the charge-sheet issued to the petitioner is unsustainable. Learned Counsel says that along with charge-sheet, the management has not chosen to enclose various documents, list of witnesses etc., in the matter. It is also shown that the management has not chosen to disclose the misconduct in detail in terms of the charge-sheet. Learned Counsel further explains by saying that the Enquiry Officer is biased against him. He says that earlier, he made allegations against the Enquiry Officer and subsequently another Enquiry Officer has been appointed. The petitioner wanted de nova enquiry to be conducted and the same has not been accepted by the Enquiry Officer. He finds fault with the enquiry proceedings. He says that the Labour Court without taking into consideration, all these aspects has chosen to accept the enquiry in the case on hand.
5. Insofar as the merits of the matter is concerned, learned Counsel says that the material available on record would not show that the petitioner is guilty of any misconduct levelled against him. He further says that Sri Mitra, the witness has biased against him and that therefore, the findings accepted by the Labour Court requires my interference.
6. Per contra, Sri S.N, Murthy, learned Senior Counsel who appears for the management would support the award. He further pleads that no leniency can be shown by the Court in a matter like this. He says that the modesty of a woman is outraged in the case on hand which has been accepted by the Labour Court. He wants the dismissal of the petition. Both the learned Counsels places before me a few judgments in support of their respective submissions,
7. After hearing, I have carefully perused the material on record.
8. Admittedly, the petitioner is challenging both the preliminary order as well as the final award. Let me first consider as to whether the domestic enquiry accepted by the Labour Court suffers from any irregularities or illegalities in terms of the submissions made by Sri Rajagopal, learned Counsel. Material on record would show that the management has chosen to issue a charge-sheet dated 4-6-1996. In the said charge-sheet, it is mentioned that on 29-5-1996, the petitioner was in general shift. At about 10-45. a.m., one Miss Jyothi was in the library attending to library work. While she was attending to work, he went from behind and embraced her. He held her from behind placing his hands on her body and tried to squeeze her. Jyothi raised an alarm. Dr. Mitra who was in the adjacent room rushed to her rescue and ordered him to get out of the place immediately. It was further stated that the petitioner was found photocopying the research papers in the Data Processing Room at the R and D Centre without permission. Two other employees namely, Mr. Rahul and Mr. Srikant were in the Data Processing Room. Dr. Mitra caught him while he was photocopying the research papers. He with a view to destroy any evidence, tore the photocopied papers and put them in the waste paper basket. He was charged for the following misconduct:
21(6) Theft, fraud or dishonestly within the establishment's premises or in respect of the establishment's business property.
21(14) Drunkenness or disorderly behaviour within or immediately adjoining the establishment's premises or properties or any subversive of discipline or efficiency.
21(17) Conduct on the part of any employee likely to endanger the life or safety of other employees of the establishment.
21(32) Misbehaviour....
21(54) Any act or omission punishable under the laws in force.
21(55) Any other offence or act of misconduct not specified above.
9. In the light of this detailed charge-sheet, I am of the view that it cannot be said that the charge-sheet does not contain the necessary details as argued by Sri M.R. Rajagopal, learned Counsel. The charge-sheet contains the material details. Insofar as the enclosures along with the charge-memo of the witness are concerned, it would depend upon the Rules and Regulations as applicable to a given set of circumstances. It is not the case of the petitioner that the present charge-sheet, in any way, violates any of the standing orders as in the case on hand. In these circumstances, I am satisfied that the charge-sheet is an acceptable one and hence the argument of non-disclosure of charges in terms of the arguments of Sri Rajagopal, learned Counsel does not appeal to me.
10. Sri Rajagopal, learned Counsel argues that the procedure so adopted by the Enquiry Officer require reconsideration. For the said purpose, he says that the Labour Court has committed an error in accepting the proceedings in its order dated 19-6-2002. Proceedings are filed by Sri Rajagopal along with an IA. From the proceedings it is seen that the presiding officer has chosen to present the documents on 1-7-1996. Copies were made available to the petitioner-workman. They were also taken on record after ascertaining the acknowledgment of the respective documents. Insofar as legal assistance is concerned, the Enquiry Officer notices that Dr. Mitra is not legally trained person and that therefore, there is no need to provide any assistance of an Advocate. Dr. Mitra, though was a management representative was examined initially and he was permitted to cross-examine in the matter. Matter was adjourned to 16-7-1996. The workman was not present on 16-7-1996 and therefore, the enquiry was postponed to 23-7-1996 in terms of a letter dated 16-7-1996. Even on 23rd, he was not present and hence, the enquiry was adjourned to 8-8-1996. On 8-8-1996, enquiry was held and Dr. Mitra was cross-examined by the delinquent workman. Matter was adjourned to 22-8-1996. The petitioner was absent on the said date. Hence, the enquiry was adjourned to 6th September. On 6th September, Dr. Mitra was further cross-examined by the workman. Matter was again adjourned to 12th September. On the said date, it was adjourned to 17th September. Dr. Mitra was further cross-examined by the delinquent official. He has put as many as 124 questions to Dr. Mitra. On the said date, he gave a letter making certain allegations against the Enquiry Officer. The Enquiry Officer adjourned the matter in the light of the allegations Thereafter, the management has chosen to change the Enquiry Officer and instead, one Sri Manjunathan was appointed as the Enquiry Officer. He conducted the enquiry from the stage at which it was left by the earlier Enquiry Officer. Sri Rajagopal, learned Counsel says that the subsequent Enquiry Officer ought to have conducted de nova enquiry in the matter. He is unable to show any prejudice as such in terms of the enquiry proceedings conducted by Sri Manjunathan in the case on hand. In fact, the Labour Court in its order notices all these facts and thereafter has come to a conclusion on facts that the enquiry proceedings are acceptable in the case on hand. The Labour Court notices that no prejudice as such is caused in the light of the subsequent enquiry conducted by Sri Manjunath. The Labour Court notices the manner in which the entire proceedings were conducted by the Enquiry Officer. A reading of the enquiry proceedings and in the light of the material available on record, it cannot be said that the Labour Court has committed any error, whatsoever, in holding that the enquiry as fair, proper and legal. This finding is based on facts, I do not find any illegality in the said order. I accept the said order.
11. However, I must notice the judgment sited by Sri Rajagopal, learned Counsel. Mousumi Banerjee v. First Industrial Tribunal and Anr. (2005)1 SLR 365, is a judgment of the Calcutta High Court. In the said case, the Calcutta High Court considered the issue of bias, in the light of the complainant/show cause issuing authority/presenting officer/witness being one and the same person. In the case on hand, the facts are totally different. Only Dr. Mitra was a witness and presenting officer. A show-cause notice has been issued by the partner of a Company and the final order is passed by the partner. Hence, the theory of bias in terms of the said judgment is not available to the petitioner since the present case stands on a totally different footing. Learned Counsel also relies on a judgment of the Supreme Court in State of Uttar Pradesh v. Shatrughan Lal and Anr. That was a case in which the Court was considering with regard to non-supply of statement of witness despite a demand in terms of the factual finding available in the said judgment. This judgment is also equally of no assistance. In these circumstances, the first challenge to the preliminary order has to be rejected and I do so in this order.
12. The petitioner also has challenged the final award in terms of the prayers made in the writ petition, It is admitted on record that the petitioner was charged for an act of embarrassing a colleague in the office premises in terms of the material available on record. The petitioner was charged for various misconducts in terms of the articles of charge issued to the petitioner. An enquiry was conducted and the enquiry is held to be fair and proper by the Labour Court, which finding, I have accepted in this order. Hence, the only question that is required for consideration is as to whether the findings of the Enquiry Officer is perverse or not and whether the management is justified in the case on hand in passing an order of dismissal in the given circumstances.
13. Before I touch upon the findings of the Labour Court, let me see what the law is with regard to such acts on the part of the employee towards a woman colleague.
14. The Supreme Court in Apparel Export Promotion Council v. A.K. Chopra , had considered the case of sexual harassment in the said judgment. The Supreme Court has considered the approach of Courts to molestial cases and also the meaning of sexual harassment in para 25 of the said judgment reading as under:
The observations made by the High Court to the effect that since the respondent did not "actually molest" Miss X but "tried to molest" her and, therefore, his removal from service was not warranted rebel against realism and lose their sanctity and credibility. In the instant case, the behaviour of respondent did not cease to be outrageous for want of an actual assault or touch by the superior officer. In a case involving charge of sexual harassment or attempt to sexually molest, the Courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression molestation'. They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the Courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy as no relevance. The High Court overlooked the ground realities and ignored the fact that the conduct of the respondent against his junior female employee, Miss X, was wholly against moral sanctions, decency and was offensive to her modesty. Reduction of punishment in a case like this is bound to have demoralizing effect on the women employees and is a retrograde step. There was no justification for the High Court to interfere with the punishment imposed by the departmental authorities. The act of the respondent was unbecoming of good conduct and behaviour expected from a superior officer and undoubtedly amounted to sexual harassment of Miss X and the punishment imposed by the appellant, was, thus, commensurate with the gravity of his objectionable behaviour and did not warrant any interference by the High Court in exercise of its power of judicial review.
15. The Supreme Court again has considered the sexual harassment in Vishaka and Ors. v. State of Rajasthan and Ors. . The Supreme Court has ruled that "the fundamental right to cary on any occupation, trade or profession depends on the availability of a 'safe' working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the Legislature and the executive, However, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum".
16. The Supreme Court has noticed the laudable principle of safe working environment in an industry. The Supreme Court has also noticed the evil effect of an employee's misbehaviour with women employees. It is only thereafter the Supreme Court has chosen to provide guidelines which were declared to be a law under Article 141 of the Constitution. This Court has to say that women as on today join services for variety of reasons. It may be for augmenting better income or it may be to sustain the family or it may be for any other family reason in a given circumstances. Such working women are to be protected by the employer so that a safe environment for women is available in an industry. Any violation in not providing safe environment would result in unwanted and unethical misconduct touching upon the dignity of an employee in an industry. Neither the employer nor the Courts can be silent spectator to this issue. Employer of course has to be very strict in the laudable object of providing a dignified safety environment in terms of Article 21 of the Constitution of India to woman employee. With this laudable principle and object, let me see as to whether the Labour Court in the case on hand is justified in confirming the order of dismissal.
17. The workman, as I mentioned earlier was charged for two misconducts, namely., one of misbehaviour with a woman employee and another with regard to photocopying of the research papers in the Data Processing room at the R and D Centre without the permission of the superiors. Evidence was recorded before the Enquiry Officer and the Enquiry Officer provided detailed finding in terms of his report. In fact, several questions put to the woman employee itself would show that in an indirect way, the workman accepts the incident. Be that as it may. The Labour Court in the impugned award notices the evidence in its award. The Labour Court notices that 3 witnesses were examined including a women employee. The Labour Court has culled out in its award, the evidence of the woman employee. It also notices the evidence of Dr. Mitra, in the light of this evidence available on record. The Enquiry Officer comes to a conclusion that the management has proved the incident on 29-5-1996. The Enquiry Officer also notices the theory of enemity, which has no legs to stand in terms of his findings. The Labour Court in the light of these findings has chosen to consider this in its award. The Labour Court notices that two 'witnesses were examined for the management and 14 documents were exhibited on behalf of the management. The Labour Court notices the evidence of Dr. Mitra in the light of the report at Ex. M. 2. The Labour Court notices the various questions put to the witness in para 11 and after noticing these questions, the Labour Court, in my view, has come to a right conclusion that the incident is a reality. The Labour Court notices that the evidence of Dr. Mitra would support the evidence of woman employee. After noticing the Labour Court has come to a conclusion that the findings are acceptable in law. This acceptable of the finding by the Labour Court in the light of the Enquiry Officers findings cannot be said to warrant any interference in a case like this. Hence, I have no hesitation in accepting the award insofar as the proof of the first charge is concerned.
18. Similarly, insofar as the 2nd charge is concerned, the Enquiry Officer notices the evidence of Dr. Mitra with regard to the documents in terms of articles of charge. The Labour Court while considering the second charge has chosen to notice the evidence of Dr. Mitra and also Exs. M. 10 and M. 14. After noticing the Labour Court has rightly, in my view, has come to a conclusion that the findings are acceptable findings. Law is also fairly well-settled that if the findings is based on evidence on record and is an acceptable one, then the same cannot be set aside as perverse finding by Courts. Perverse findings has been declared to be a finding based on no evidence or a finding which is totally opposed to the evidence available on record. No such case is made out by the petitioner in this case. In these circumstances, the findings cannot said to be unsustainable in law.
19. The Labour Court has also notices that the plea of victimisation is not available in the case on hand. The Labour Court has noticed that there is absolutely no material placed on record with regard to victimisation. The Labour Court has also noticed that there is no proof in this regard. This finding also is an acceptable finding.
20. The Labour Court thereafter notices the incident and thereafter it conies to a right conclusion that no sympathy can be shown in such cases. In fact, I cannot but once again refer to the judgment of the Supreme Court in the case of Apparel Export Promotion Council. The Supreme Court has ruled that no leniency can be shown to an employee who has chosen to make the environment unsafe for a working woman. Any leniency in terms of the findings of the Supreme Court in such cases would be totally uncalled for in such circumstances. In these circumstances, I have no hesitation in accepting the dismissal confirming in award.
21. Petition stands rejected.