Madras High Court
Management Of Auro Food Ltd. vs Presiding Officer, Labour Court And ... on 13 December, 2000
Equivalent citations: (2001)IILLJ1721MAD
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
JUDGMENT P.D. Dinakaran, J.
1. The first respondent Labour Court by an order, dated August 3, 1993, in I.D. No. 222 of 1992, held that the charges framed in the disciplinary proceedings initiated against one S. Muthukumaran, S. Kumar, I. Christope and A.M. Etiappan were proved after holding a fair and proper enquiry adjourned the matter to August 10, 1983 for adducing evidence to go into the justification of the punishment imposed, on the said workmen; but held that the order of dismissal, dated July 1, 1988, dismissing one K. Sugumaran, workman under the petitioner-management is improper and unjustified as the same had been passed without holding any domestic enquiry into the charges levelled against him in the chargememo, dated June 20, 1988.
2. Aggrieved by the said findings of the Labour Court, dated August 3, 1998, holding that the dismissal of K. Sugumaran, workman by an order, dated June 20, 1988, is not justified, the petitioner-management seeks issue of a writ of certiorari to call for the records of the first respondent in I.D. No. 222 of 1992 and to quash the same so far it relates to the case of K. Sugumaran and direct first respondent to hold an enquiry against K. Sugumaran afresh and deal with the matter on merits.
3. Even though a preliminary objection was raised by Sri N.G.R. Prasad, the learned counsel for the second respondent-union, as to the maintainability of the writ petition-against an interim order, dated August 3, 1993 placing reliance on the decisions in Agro Cargo Transport Ltd. v. E. Murugan reported in 1995- I-LLJ-544 (Mad-DB) and Engine Valves Ltd. v. Presiding Officer, Industrial Tribunal, Madras, and Anr. reported in 1996 (1) L.L.N. 167, wherein it is held that no interference is required under Article 226 of the Constitution of India against the preliminary order. I am of the considered opinion that the ratio laid down in these decisions are not applicable to the facts of the instant case, as the finding of the first respondent Labour Court in so far as the dismissal of K. Sugumaran is concerned holding that the same is unjustified had become final and therefore the petitioner-management has no opportunity to adduce any evidence to substantiate the order of dismissal, dated July 1, 1988, before the Labour Court any more. Hence I am obliged to deal with the matter on merits.
4. By a show-cause notice, dated June 20, 1988, it was charged that:
(i) the workman K. Sugumaran had been deliberately slowing down and allowing the machine to run idle;
(ii) he had abused and shouted at the Personnel Manager;
(iii) he had mobbed and shouted at shift Supervisor, S. Baskaran and also pulled his hands;
(iv) he had caused sufficient apprehension in the minds of the Personnel Manager and the Personnel Officer and the shift Supervisor that there would be threat to their personal safety; and
(v) his rude behaviour during the working hours had greatly affected the discipline in the organisation and adversely affected the morale of the officers and staff.
5. Treating the said charges as serious, the petitioner- management initiated a disciplinary action against the workman K. Sugumaran and issued a show-cause notice, dated June 20, 1988, calling upon the workman K. Sugumaran to submit his explanation against the said charges. The workman submitted his explanation, dated June 23, 1988, and denied all the charges levelled against him and also specifically requested for an enquiry into the said allegations; but the petitioner-management without conducting any enquiry, by their order, dated July 1, 1988, dismissed the workman K. Sugumaran which reads as follows:
ADDRESS ALL AURO ENGINEERING correspondence to Ref: MMP: OH Auroville 605 101, India Reg. Post/G.O.P. Phone: 23383 (3 Lines) Telex: 469223 True in Grams: Auroeng. Pondicheny July 1, 1988 K. Sugumaran S/o. T. Krishnaraju Akasainpet Rawttakuppanu Post, Auroville - 605 101.
Dear Sir, Sub: Dismissal order.
We are in receipt of your explanation letter dated June 23, 1988 to our show-cause notice against dismissal ref MMP: OH, dated June 20, 1988. We regret to inform you that we do not find your explanation satisfactory and acceptable.
We have carefully gone through the complaint; investigated the matter and we are fully convinced that you are guilty of the serious acts of misconduct alleged against you vide the company's show cause memo, dated June 9, 1988.
Considering the serious and grave nature of the misconducts committed by you, we are of the opinion that you merit the just and proper punishment of dismissal from the service of company.
We hereby emphasize and place on record that in this case involving serious disruption of discipline and severe erosion of morale, conducting any domestic enquiry will only further lower the morale of the organisation and therefore not feasible. The management, however, reserves the right to adduce evidence if at any stage, it becomes necessary before any forum including the Labour Court.
You are hereby dismissed from the service of the company with effect from the date of this letter.
Please find enclosed a cheque for Rs. 843.80 being the full and final settlement of amount payable to you. We have also enclosed a copy of the full and final settlement of account in duplicate. You are requested to return a copy of the full and final settlement of account duly signed.
Yours faithfully, FOR AUTO ENGINEERING.
(Sd.) (M.M. Patel) Technical Director End.: Cheque No. CE/400/195989, dated July 1, 1988 for Rs.843.80 full and final settlement of accounts in duplicate.
6. Admittedly, no domestic enquiry was conducted before dismissing the workman K, Sugumaran by order, dated July 1, 1988.
7. Since four persons namely S. Muthukumaran, S. Kumar, I. Christope and A.M. Etiappan were also dismissed by the petitioner-management, the second respondent union took up the case of K. Sugumaran and four other persons in I.D. No. 1044 of 1989, seeking their reinstatement in service with full back-wages, bonus without break in service but with all attendant benefits.
8. The first respondent Labour Court framed a preliminary issue, namely, whether the domestic enquiry conducted by the petitioner-management against the said workman is fair, proper and justified.
9. The first respondent Labour Court, while deciding the said preliminary issue, by order, dated July 1, 1988 which is impugned in the above writ petition, held that the enquiry conducted against four persons S. Muthukumaran, S. Kumar, I. Christope and A.M. Etiappan are justified; but the order of dismissal, dated July 1, 1988, dismissing the workman K. Sugumaran is unjustified for want of fair and proper domestic enquiry. Hence the above writ petition.
10. Sri. Karthik, the learned counsel for the petitioner- management, placing reliance on Ashok Leyland Ltd. v. Labour Court reported in 1988 (1) L.L.N. 302 contends that when a dispute is referred to Labour Court under Section 10(1) of the Industrial Disputes Act, it is open to the employer to justify the order of dismissal by tendering evidence before the Labour Court to prove the misconduct alleged against the employee. It is contended that even though the employee was dismissed without holding a domestic enquiry, if the order of dismissal is still sustained by the employer by justifying it before the Labour Court by adducing relevant evidence, the same would relate back to the date of the original order of dismissal as held in P.H. Kalyani v. Air France, Calcutta and Delhi Cloth & General Mills v. L.B. Singh and D. C. Roy v. Labour Court and Ors. reported in 1976 (2) L.L.N. 299. In the instance case, order of dismissal, dated July 1, 1988 was passed without conducting any domestic enquiry. If the dismissal could be sustained by the petitioner-management by: adducing substantial evidence, then the order of the Labour Court relates back to the date on which the order of dismissal was passed. It is further contended that the denial of such opportunity to adduce the evidence before the Labour Court to substantiate the order of dismissal holding that the order of dismissal is unjustified, is illegal, and contrary to the ratio laid down by the Apex Court in Kalyani case (supra) D. C. G. Mills case (supra) D. C. Roy case (supra) and Ashok Leyland case referred to above, in as much as the workman had been charged for go slow which is considered to be a serious misconduct as held in Bank of India v. T. S. Kelawala and Ors. :
11. Per contra, Sri Prasad, learned counsel for the second respondent-union contends that the failure to observe the rules of natural justice on one hand and victimisation for having imposed a punishment of dismissal disproportionate to the allegations levelled against the workman K. Sugumaran, even assuming it is proved vitiates the impugned order of dismissal, dated July 1, 1988. In the absence of any materials, the contention of the petitioner-management that the workman K. Sugumaran resorted to "Go Slow" is not tenable in law and consequently, it is contended that the workman K. Sugumaran could not be held to have resorted to" Go slow". Sri Prasad, further contends that the utterance of the words, even as found in the report, dated June 9, 1988, namely:
Vernacular matter omitted could not be considered as abusive in character as the same have to be tested only from the workman's point of view, which may, even sometimes, lack culture. Assuming that the words uttered by the workman K. Sugumaran as alleged are abusive and indecorous exhibiting his indiscipline, yet the indiscreet use of language per se cannot be the basis of an order of dismissal as held in Virudhachalam Co-operative Urban Bank Ltd. v. Labour Court, Cuddalore and Anr. reported in 1995-11-LLJ-173, wherein the Labour Court came to the conclusion that the punishment of dismissal was grave and disproportionate to the seriousness of the charge namely, use of indiscreet, improper and abusive language contended that if the Labour Court could hold the impugned punishment of dismissal as grave and disproportionate to the charge alleged against the workman K. Sugumaran, assuming the utterance of the indiscreet, improper and abusive language is admitted, this Court by exercising the powers conferred under Article 226 of the Constitution of India would equally hold that the order of dismissal, dated July 1, 1988, dismissing the workman K. Sugumaran is unjustified as the same is grave and disproportion-ate for the charge alleged against him and therefore amounts to victimisation as held in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha case Sri Prasad further contends that even though the petitioner- management could substantiate the order of dismissal, dated July 1, 1988, of the workman K. Sugumaran by adducing evidence before the Labour Court placing reliance on Kalyani case (supra), D. C. G. Mill's case (supra), D. C. Roy case (supra) and Ashok Leyland case (supra) the petitioner is entitled for subsistence allowance till a finding is arrived by the Labour Court against the alleged charges or otherwise, it would, be a denial of fair and reasonable opportunity to him to substantiate his case.
12. I have given careful consideration to the submissions of both sides.
13. Admittedly, in the instance case, no enquiry was conducted by the petitioner-management before passing the impugned order of dismissal, dated July 1, 1988. It is well settled that even where a dismissal of an employee is ordered by the employer without holding a domestic enquiry, the employer, is still entitled to substantiate and justify the order of dismissal by tendering evidence before the Labour Court to prove the alleged misconduct against the employee as held in Kalyani case (supra), D.C.G. Mills case (supra), D. C. Roy case (supra) and Ashok Leyland case (supra) referred to above, and if the dismissal is further justified by the award, the same would relate back to the date of original dismissal order. "But in the instant case, the Labour Court while holding that the order of dismissal, dated July 1, 1988, dismissing the workman K. Sugumaran is not justified, had not permitted the petitioner-management to adduce relevant evidence. Therefore, in my considered opinion, the findings of the Labour Court in this regard is not sustainable in law. Of course, as held in Bank of India case (supra) there cannot be any different opinion as "Go Slow" is a serious misconduct being a covert and a more damaging breach of the contract of employment. It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work. It has been roundly condemned as an industrial action and has not been recognised as a legitimate weapon of the workmen to redress their grievances. But, to arrive at such conclusion, there should be materials available apparent on the face of the records. A reading of the impugned order of dismissal does not reflect any reasons to come to the conclusion that the workman K. Sugumaran had resorted to Go Slow and such an allegation could be proved only by adducing relevant evidence before the Labour Court by the management and it may not be proper for this Court either to accept the case of the petitioner-management that the workman K. Sugumaran has resorted to go slow or to accept the denial of such allegations by the workman K. Sugumaran. Similarly as held in Virudhachalam Co-operative Urban Bank Ltd. case (supra), the mere use of indiscreet, improper and abusive language even though would show the lack of culture by itself, there is no justification to impose the punishment of dismissal. By exercising the powers conferred under Article 226 of the Constitution of India and as per the ratio laid down in Gujarat Steel Tube's case (supra), it may not be proper for this Court to interfere with the very order of dismissal, dated July 1, 1988, in the instant case, as the workman K. Sugumaran is not only charged for the use of abusive words alone but also for the charge that the workman had resorted to "Go Slow", which has to adjudicated before the Labour Court. No doubt, there existed distinction between the cases where the domestic enquiry was conducted, charges were held proved and the employee was punished and where the employee is punished even without proving the charges in a domestic enquiry. Assuming that the earlier could be challenged for the defects in the enquiry, the latter suffers for want of enquiry itself. It is well settled in law that where a blatant and conscious infringement of the rules of natural justice is an outrageous and flagrant defiance of fundamental legal precepts, the public interest demands nullification of any such legal consequences. In such case, since it is permissible for the petitioner-management to adduce evidence to justify the order of dismissal, it is equally permissible for the workman to defend himself and it is for the Labour Court to adjudicate into the proceedings and ultimately arrive at such appropriate conclusion on the allegations placed against the workman. Accordingly, the matter is remitted back to the first respondent Labour Court permitting the petitioner-management and the workman respondent to substantiate their respective case. But the mere remittance would not itself be an end to the grievance of the workman K. Sugumaran who had been dismissed and subjected to the agony of legal proceedings for the past 12 years, as rightly pointed out by Sri Prasad, the learned counsel for the second respondent. Therefore, the workman, K. Sugumaran should be given a fair and reasonable opportunity to defend himself in the adjudication pending before the Labour Court. It is needless to emphasise that unless the workman subsists he cannot defend himself. The meaning of the word subsists, as given in shORTER OXFORD ENGLISH DICTIONARY, is to, remain alive as on food; to continue to exist and subsistence means supporting life, especially a minimum livelihood. Therefore, if the workman is to be given a fair and reasonable opportunity to defend himself, he has to remain alive on food, to which he requires the subsistence allowance to be paid by the petitioner-management, who had dragged the workman into a disciplinary action, but not on his own accord. Hence the payment of subsistence allowance alone could enable the workman to maintain himself and the members of his family and also to meet the expenses of litigation to which he is subjected to. If no amount is paid during the pendency of such disciplinary action it is to be held that the workman concerned has been denied a fair and reasonable opportunity to defend himself in the disciplinary proceedings initiated by the management either before the management themselves or before the Labour Court/ Tribunal as the case may be as held in Fakhirbhai Fulabhai Solanki v. Presiding Officer and Anr. . Therefore, the act of non-payment of subsistence allowance can be likened to slow poisoning of the employee, if not permitted to sustain himself on account of non-payment of subsistence allowance, would gradually starve himself to death, as observed in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. . Therefore, while accepting the case of the petitioner- management that they are entitled to adduce relevant evidence to justify the order of dismissal before the Court and remitting the matter to the Labour Court to adjudicate the matter afresh and to give a fair and reasonable opportunity to the petitioner-management to justify the order of dismissal as well as the second respondent-union, by applying the ratio laid down in Solanki case (supra) and Capt. M. Paul Anthony case (supra), I am obliged to direct the petitioner- management to pay the subsistence allowance to the workman as per law from the date of suspension and to settle the arrears of the subsistence allowance payable to the workman within thirty days from the date of receipt of the copy of this order.
14. This writ petition is ordered accordingly. No costs.