BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14/08/2009
CORAM
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
WRIT PETITION (MD) No.2521 of 2005
and
W.P.M.P.(MD)No.2554 of 2005
The Management,
Hariharaputhra Estate,
Netta,
Kanyakumari District rep.
through its General Manager,
G.Sreenath. ... Petitioner
vs
1.The Presiding Officer,
Labour Court,
Tirunelveli.
2.Y.Chellayyan
3.A.Rajappan
4.P.Johnson ... Respondents
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari to call for the records relating to the common Award
passed by the first respondent in I.D.Nos.638/1992, 642/1992 and 644/1992 dated
27.1.2003 and to quash the same in relating to the relief granted to the
respondents 2 to 4.
!For petitioner ... Mr.P.Chandra Bose
^For respondents ... Mr.S.James for R2
Mr.M.Gnanagurunathan
for R3 & R4
:ORDER
The Petitioner/Management, a Rubber Estate represented by its General
Manager has filed this Writ Petition challenging the common award passed in
I.D.Nos.638/1992, 642/1992 and 644/1992 dated 27.1.2003 by the Presiding
Officer of the Labour Court, Tirunelveli.
2. The contention of the petitioner is that it is a Rubber Estate situated
in Kalial village in Kanayakumari District. In this Estate, there were 70
workmen viz., 45 tappers and 25 General Workers (Field Workmen) and the
respondents 2 to 4 were working as tappers in the petitioner’s estate.
Respondent Nos.2 and 3 along with some others were placed under suspension by
order dated 14.4.1990 for refusing to do loading work. As they were suspended
employees, they were prohibited from entering into the Estate. However, on
18.4.1990, at about 8.30 a.m., they unauthorisedly came into the Estate and
wrongfully confined (gheraoed) the Administrative Officer, the Assistant
Superintendent of the Estate and the Jeep Driver of the Administrative Officer
on the road in front of the Estate Factory situated in the Peramalai Division of
the Estate. They did not allow the Administrative Officer and others to move
away from the place. At about 9 a.m., three tappers namely, E.Nelson, P.Johnson
(4th respondent) and R.Selvaraj also joined the gherao stopping their work and
leaving their work place in the Estate. Later on, police was informed and the
police came there and asked the workers indulged in gherao to get dispersed.
The workers even refused to give some drinking water for the Administrative
Officer who was wrongfully confined and only after 2.00 p.m., after much
persuasion, gherao was lifted and the Administrative Officer was released. All
the workmen who had indulged in gehrao were given charge memo (show-cause
notice) dated 24.4.1990. As per the said notice, the three tappers viz.,
E.Nelson, P.Johnson (4th respondent) and R.Selvaraj were also placed under
suspension. The workmen to whom show cause notices were sent refused to accept
the notice except C.A.Chellayyan. The notices were returned as “refused”. The
fourth respondent who had refused to receive the show cause notice dated
26.4.1990 had committed other misconduct also. On 21.4.1990 at about 6.45 a.m.,
when Sri Krishna Nair one of the staff member of the petitioner was proceeding
to Pannimala Division, P.Johnson, the fourth respondent abused him by filthy
language in Malayalam and pushed him away and thereby prevented him from going
to the work. For this, a separate charge sheet was also given on 26.4.1990. He
further committed another serious misconduct. On 7.5.1990 at about 5.15 am., he
along with other workmen closed the main gate and small gate of the Estate
Factory situated in Peramalai Division and thereby caused obstruction for other
works to go for work. He has even threatened another employee with dire
consequences including the threat of physical assault. For this, a separate
charge sheet was given on 4.6.1990. The third respondent also indulged in the
commission of offence and he was also issued charge memo dated 14.6.1990.
Fifteen workmen including the eight workmen who wrongfully confined the
Administrative Officer on 18.4.1990 and prevented tapping and field work from
being performed for a number of days, were given charges, an enquiry was
conducted and after enquiry, they were dismissed from service. The charges
levelled against them were found proved in a properly conducted enquiry. The
management was able to identify seven workmen who did not participate in the
enquiry but participated in the prevention of work. They are (i) C.Johnson,
(ii) N.Baby, (iii) Jainy, (iv) Echooty), (v) Sarojini, (vi) Devaky and (vii)
Kamalabi.
3. All those 15 workers were dismissed from service after giving
reasonable opportunities to defend their case pursuant to the findings of the
enquiry officer. Seven employees who did not participate in the serious charge
of gherao and wrongful confinement of the Administrative Officer of the
Management but charged for participating only in preventing the workmen,
submitted a written apology for the misconduct committed by them, through their
union. There was a Bi-partite Settlement dated 7.5.1991 with the office bearer
of Kumari Mavatta Thotta Thozhilalar Sangam who also represented the respondents
before the Conciliation authorities. As per the term of settlement, the said
seven persons who had tendered unconditional apology were reinstated in service
and as per the settlement, the period between the dismissal and the
reinstatement was treated as Leave on Loss of Pay and no backwages was paid but
they were reinstated. The management also produced a copy of the settlement
entered into between the management and the labour union. In that settlement, it
was also made clear in Term No.2 that reinstatement of the said employees was
considered as a special case on their giving apology letter and in view of the
same, punishment of dismissal was modified treating it as absent on loss of pay
from the date of dismissal to the date of reinstatement. Term No.2 of the
Settlement is extracted hereunder for reference.
“2. It is mutually agreed that the following workmen namely (1) N.Baby,
(2) C.Johnson, (3) Jainy, (4) Echoothy, (5) Sarojini, (6) Devaky, (7) Kamalabai
who were found guilty of the charges levelled against them, after a duly held
domestic enquiry and who were dismissed from service will, as a special case, be
reinstated in service on their giving an apology letter and that, by way of
token punishment, the period from the date of dismissal to the date of
reinstatement as per this clause will be treated as absence from work on loss of
pay.”
4. It is the contention of the learned counsel for the petitioner that
inspite of the specific understanding and agreement between the management and
the union, till date, the respondent Nos.2 to 4 never offered or tendered any
apology but instead, they had challenged the matter before the Labour Court and
a common award was passed. It is the further contention of the learned counsel
for the petitioner that the Labour Court did not take into consideration the
seriousness of the offence committed by the respondents 2 to 4 but it only took
into consideration the subsequent event viz, settlement arrived at between the
management and the union insofar as it relates to the tendering apology of seven
persons and reinstatement thereon. Further, the Labour court has given a
finding that though the enquiry was correct, subsequent event proved that there
was discrimination in the punishment given to the respondents 2 to 4 herein and
hence, it ordered for reinstatement of the respondents 2 to 4 with backwages,
which is under challenge in this Writ Petition.
5. Respondent 2 to 4 are represented by Advocates. As far as the 2nd
respondent is concerned, the Advocate and the Management has fairly submitted
that subsequently, in view of the fact that the 2nd respondent has already
superannuated and also entered into a compromise arrived at settlement and in
view of the settlement, gratuity amount alone was received in full quit of all
the claims. Therefore, insofar as the second respondent, the matter has been
settled and he quit all the claims. In fact, in the letter given to the
management dated 15.2.2007, the second respondent has categorically stated that
he is not interested in contesting the case. The translated copy of the letter
written by the second respondent was produced before the Court. The management
has also produced receipt given by the second respondent dated 1.3.2007 for full
payment of the gratuity amount. Hence, insofar as the second respondent is
concerned, the matter has been settled. The letter of the 2nd respondent forms
part of the records.
6. The third and fourth respondents contested the case on merits and the
Advocate representing the third and fourth respondent also fairly submitted that
insofar as the third respondent is concerned, though the third respondent has
already superannuated, the learned Advocate is arguing the case in respect of
the benefits what the third respondent could have got had the third respondent
was reinstated.
7. The only contention made by the learned counsel for the third and
fourth respondents was that there was a categorical discrimination as against
the respondent Nos.3 and 4 when compared to other seven workers who have been
reinstated. Hence, he is contesting the case on merits and the order passed by
the Labour court was correct on the ground of discrimination meted out to
respondents 3 and 4 and so substantiated their case.
8. Heard all the parties concerned.
9. The short question which is to be decided in this Writ Petition is
whether the settlement arrived at between the management and the dismissed
employees subsequent to the order of dismissal by virtue of tendering of apology
letter and their reinstatement vis-a-vis the persons who have not tendered
apology letter could be called as discrimination in respect of imposition of
punishment insofar as it relates to non-reinstatement.
10. Learned counsel for the petitioner vehemently argued that it is a case
where the differences between the respondents 2 to 4 and the persons who have
been reinstated can never be called as discrimination for the following
reasons:-
(i) Action was taken against all the 15 employees and dismissal order was
passed against all of them originally. It is later on pursuant to the
initiation of the union, a compromise was arrived at and seven of them gave a
letter tendering unconditional apology when they represented through their
union. The management agreed to reinstate them based on their unconditional
apology, of course, without backwages for the interregnum period i.e. from the
date of dismissal till the date of reinstatement, which are treated as absent
and loss of pay.
(ii) Insofar as the respondents 2 to 4 are concerned, even though there
was a specific clause viz., “clause No.3” in the settlement arrived at between
the management and the union giving a period of six months for bipartite
discussion with a view to find an amicable settlement, the respondents 3 and 4
never came forward for the discussion nor tendered apology or approached their
union for such an amicable settlement. Clause No.3 of the Settlement arrived on
7.5.1991 is extracted hereunder for reference:
“3. It is agreed by and between the parties that the demand of the Union
for reinstatement of 1.Augustine (2) P.Johnson (3) E.Nelson (4) E.Selvaraj (5)
C.A.Chelliar (6) Y.Chellaian (7) A.Rajappan (8) Sanalkumar, who were found
guilty of charges levelled against them in two separate domestic enquires duly
held, and who were dismissed from service of the management, will be again taken
up for bipartite discussion with a view to find an amicable settlement within a
period of 6 months.”
11. In support of his contention, the learned counsel for the petitioner
clearly argued that pursuant to the decision of the Supreme Court, it cannot be
stated that there is discrimination or differentiation between persons who have
tendered apology and persons who have not tendered apology as they do not stand
on the same footing. Seven persons were taken back in the service without
backwages based on their apology and apart from that the charges levelled
against them were not so grave as they did not assault or gheraoed the
Administrative Officer of the Management or they did not prohibit any officers
of the Management but they only obstructed certain people from doing work and so
they have not done heinous crime. Thus, the people who were reinstated were
only who committed offence of less gravity and hence, they have been allowed to
be reinstated. However, respondents 3 and 4 herein originally participated in
gheraoing and obstructing the personnels of the management and workers from
doing their work and especially the fourth respondent has not only at one
occasion but on very many occasion acted so. Both third and fourth respondents
took law into their hands and troubled the management. Apart from that, they
never chose to tender apology to the management instead they contested the
punishment awarded to them.
12. For this proposition, the learned counsel relied on the following
judgments reported in 2004 III CLR 755 [Managment of Krishnakali Tea Estate v.
Akhil Bharatiya Chah Mazdoor Sangh & Another], where Hon’ble Three Judges Bench
of the Hon’ble Supreme Court has categorically held that gheraoing and
wrongfully confining the Manager are all sufficient to come to the conclusion
that the concerned workmen have indulged in misconduct. Their Lordships have
further held in paragraph No.30 that inspite of settlement with some other
workmen who are found guilty of charges would not in any manner, reduce the
gravity of the misconduct in regard to the workmen concerned. Paragrah No.30 of
the said judgment is extracted hereunder for reference.
“30. This leaves us to consider whether the punishment of dismissal
awarded to the concerned workmen de hors the allegation of extortion is
disproportionate to the misconduct proved against them. From the evidence
proved, we find the concerned workmen entered the estate armed with deadly
weapons with a view to gherao the manager and others in that process they caused
damage to the property of the estate and wrongfully confined the manager and
others from 8.30 p.m., on 12th of October to 3 a.m., on the next day. These
charges, in our opinion, are grave enough to attract the punishment of dismissal
even without the aid of the allegation of extortion. The fact that the
management entered into settlement with some of the workmen who were also found
guilty of the charge would not, in any manner, reduce the gravity of the
misconduct in regard to the workmen concerned in this appeal because these
workmen did not agree with the settlement which others are agreed instead chose
to question the punishment.”
In the present case, the respondents 3 and 4 did not agree to the settlement
which other workers agreed to but instead, chose to question the punishment.
13. The learned counsel also relied on the judgment reported in 2005 III
CLR 569 (Obettee Pvt.Ltd. v. Mohd.Shafiq Khan), where the Hon’ble Supreme Court
in identical matter held that workers who have given apology and the workers who
have not given apology can not be stated to be on the same footing and same
yardstick cannot be applied. In paragraph Nos.8 and 9, the Hon’ble Supreme
Court has held as follows:
“8. On consideration of the rival stand one thing becomes clear that
Chunnu and Vakil stood at different footing so far as the Respondent-workmen is
concerned. He had unlike the other two, continued to justify his action. That
was clearly distinctive feature, which the High Court unfortunately failed to
properly appreciate. The employer accepted to choose the unqualified apology
given and regrets expressed by Chunnu and Vakil. It cannot be said that the
employer had discriminated so far as the Respondent-workman is concerned,
because as noted above he had tried to justify his action for which departmental
proceedings were initiated. It is not that Chunnu and Vakil were totally
exonerated. On the contrary, letter of warning dated 11.4.1984 was issued to
them.
9. In Union of India v. Parma Nanda 1989 II CLR 1 SC the Administrative
Tribunal had modified the punishment on the ground that two others persons were
let out with minor punishment. This Court held that when all the persons did
not stand on the same footing, same yardstick cannot be applied. Similar is the
position in the present case. Therefore, the High Court’s order is clearly
unsustainable and is set aside.”
14. In the above decisions, the Hon’ble Supreme Court has categorically
held that when there are two sets of workers especially one who has accepted,
agreed and also tendered apology would definitely be treated in a different way
and merely because good treatment is given for tendering apology that would not
by itself make the punishment given to others as discriminatory.
15. Apart from this, the learned counsel brought to the notice of this
Court the judgment of a Division Bench consisting of Justice Sri Markandey Katju
(the Hon’ble Chief Justice as he then was) and Justice Smt.Prabha Sridevan of
this Court reported in 2005 (2) L.L.N.512 [Between Management of T.I.Diamond
Chain Ltd., Chennai and (1) P.L. Ramanathan (2) Presiding Officer, I Additional
Labour Court, Chennai wherein it has been held in paragraph No.5 as follows:
“5. … employees Dhanuskodi, Kandasami and Shanmugam have tendered
apology and hence they were given minor punishment whereas the respondent
workman did not tender apology. Hence, the cases are distinguishable. In the
facts and circumstances, we are of the opinion that the Labour Court was not
justified in directing the reinstatement of the respondent-workman with fifty
per cent backwages. We, therefore, modify the award of the Labour court and the
impugned order of the learned single Judge and direct that the respondent
workman shall stand dismissed from the date of dismissal order passed by the
appellant-management.”
16. In the said case, their Lordship have held that employees Dhanuskodi,
Kandasami and Shanmugam have tendered apology and hence they were given minor
punishment whereas the respondent workman did not tender apology. Hence, the
cases are distinguishable. and that the Labour Court was not justified in
directing the reinstatement of the respondent-workman with fifty per cent
backwages. Therefore, Their Lordships modified the award of the Labour court
and directed that the respondent workman shall stand dismissed from the date of
dismissal order passed by the appellant-management.
17. In the present case, the respondents 3 and 4 neither tendered apology
nor approached the Management for settlement. The workers who tendered apology
were reinstated considering the gravity of charges levelled against them were
less. Therefore, the cases are distinguishable. The facts of the above case is
in pari-materia to the case in hand and the Judgments squarely applies to the
present case.
18. Per contra, the learned counsel appearing for the respondents 3 and 4
would contend that there is distinctive features in respect of treatment meted
out to the respondents 3 and 4 and that seven persons who have been reinstated.
19. The learned counsel relied on the judgment of this Court reported in
2007 Writ L.R.52 [N.Nandagopalan v. The Secrtary to Government] and 2007 Writ
L.R.632 [The Managment of LUK India Private Ltd., v. The Presiding Officer,
Labour Court, Salem and 2 others] for the proposition that if employees were
involved in the same incident, the Department should proceed against all or
should not proceed against any one. There is no discretion to proceed against
some of employees and no action taken against other employees, when they are
identically placed, and their involvement being identical.
20. Both the decisions are clearly distinguishable insofar as the present
case is concerned. It is not the case of the respondents 3 and 4 that there was
no action taken against other persons whereas admittedly, dismissal order was
passed against all the 15 employees. It was only subsequent to punishment
granted, the compromise was arrived at, at the instigation of union and others
and the union further stated that the same would be extended to the respondents
also since they did not proceed further or even tendered apology till date.
Hence, the judgments relied on by the learned counsel for the respondents 3 and
4 will not be applicable to the facts of the present case.
21. However, the judgment of the Division Bench of this Court reported in
2005 (2) L.L.N.512 cited supra is in pari-materia with the facts of the case on
hand and is squarely applicable to the present case. This Court is bound by the
decision of the Division Bench of this Court and the decision of the Hon’ble
Supreme Court.
22. Therefore, without any hesitation, the award of the Labour Court
insofar as it relates to respondent Nos.3 and 4 is set aside and reinstatement
granted by the Labour Court in respect of respondent Nos.3 and 4 is set aside
and the dismissal order of the Management is confirmed insofar as respondents 3
and 4 are concerned. As far as the 2nd respondent is concerned, the matter is
settled between the parties and the same is recorded.
23. In the result, the Writ Petition is allowed. Connected
W.P.M.P.(MD)No.2554 of 2005 is closed. No costs.
asvm
To
The Presiding Officer,
Labour Court,
Tirunelveli.