JUDGMENT
D. Murugesan, J.
1. The petitioners have challenged the common award passed by the first respondent in Industrial Disputes Nos. 87, 88, 89, 90, 91, 92 and 97 of 1992, dated May 31, 1993 published in the Tamil Nadu Government Gazette Part II, Section 2, dated September 1, 1993 in so far as that portion of the award of the first respondent negativating the claim of the petitioners for reinstatement in service with back wages, continuity of service and all other attendant benefits.
2. The petitioners joined the service of the second respondent-mill on April 17, 1973. When the second respondent terminated the services of the three employees on August 18, 1985, the employees of the second respondent-mill went on strike from August 19, 1985. The strike ended on December 2, 1985 as per the advice of the Special Deputy Commissioner of Labour, Madras. Charge-memos were issued to all the 17 employees including the petitioners on August 21, 1985 and September 28, 1985 and were suspended as per Clauses 19(b), 19(c) and 19(d) of the Standing Orders. As per the above charges, the petitioners along with 10 other employees threatened and intimidated loyal workmen from entering the factory and instigated them to participate in the strike. The Special Deputy Commissioner of Labour, Madras in his order, dated November 28, 1985, advised the second respondent to revoke the order of suspension in respect of the 10 workmen and permit them to resume work. In the same order the Special Deputy Commissioner of Labour also advised that the petitioners who were also placed under suspension will be under suspension pending enquiry and that the second respondent was entitled to proceed with the enquiry as against the petitioners alone. After a detailed enquiry, the petitioners were dismissed from service by the second respondent by order, dated May 12, 1986. The petitioners raised industrial dispute in Industrial Disputes Nos. 87, 88, 89, 90, 91, 92 and 97 of 1992 before the first respondent. The first respondent by a common award, dated May 31, 1993, negativated the claim of the petitioners for reinstatement in service with back wages, continuity of service and all other attendant benefits. Aggrieved by the said portion of the award, the present writ petition has been filed.
3. Sri S. Kumaraswamy, learned counsel for the petitioners, challenged the award on the following grounds namely:
(1) The entire disciplinary proceedings against the petitioners leaving the 10 employees who were also implicated by way of charge-memos for the same incident would amount to discrimination and hence the enquiry proceedings and the consequential award passed by the first respondent negativating the claim of the petitioners for reinstatement is violative of Article 14 of the Constitution of India.
(2) The charges have not been proved in the manner known to law and finally
(3) The Special Deputy Commissioner of Labour, Madras in Para.4 of the order, dated November 28, 1995, has specifically directed the second respondent to keep any orders passed after the enquiry proceeding in abeyance and a decision will be taken in the matter only after discussions before him. After the enquiry, the second respondent did not keep the final orders in abeyance as directed by the Special Deputy Commissioner of Labour and has proceeded to inflict punishment of dismissal on the petitioners and therefore also the order of dismissal and the consequential common award holding the said order is unsustainable.
4. In support of the first submission the learned counsel for the petitioners submitted that admittedly 17 employees were issued with charge-memos, dated August 21, 1985 and September 28, 1985 for the same set of incident and the alleged misconduct. However, as per the advice of the Special Deputy Commissioner of Labour, Madras, the second respondent has proceeded only with the petitioners alone as per the charges and let off the other 10 employees. The learned counsel submitted that the said act on the part of the second respondent in initiating disciplinary proceedings against the petitioners alone for the alleged misconduct and leaving the other 10 employees would amount to discrimination. In this context, the learned counsel relied upon a judgment of a Division Bench of this Court reported in (India Cements Ltd., Sankari West v. Labour Court, Coimbatore, and Ors.). According to the learned counsel, the Division Bench has held that when 19 workmen were ordered to be dismissed, directing 14 workmen to be reinstated and dismissing only 5 workmen would amount to discrimination.
5. In so far as the second contention, the learned counsel submitted that the charge-memo, dated August 21, 1985, relates to an incident alleged to have taken place at 12 midnight on August 19, 1985 and the charge- memo, dated September 28, 1985 relates to the alleged incident that took place on September 25, 1985. One Sri A. Sundarakumar and Sri Periathambi were examined as witnesses on behalf of the second respondent-management. Heavy reliance had been placed by the first respondent to come to the conclusion that the charges levelled against the petitioners were held to be proved. On the other hand, Sri A. Sundarakumar in his complaint, dated September 9, 1985, and November 16, 1985 addressed to the Sub-Inspector of Police, Ammapettai Police Station, did not make any reference to the incidents which allegedly had taken place on August 19, 1985 and September 25, 1985 against the petitioners. Further, the criminal case registered on the basis of his complaint were tried and ultimately ended in acquittal. The said fact has not been taken note of by the first respondent. Further, the learned counsel relied upon the counter-affidavit of the second respondent filed along with the writ petition more particularly with reference to Para 14 wherein it is stated that the second respondent had prayed the leave of this Court to eschew the first respondent’s reference to the evidence of Sundarakumar and Periathambi with regard to the incidents on September 9, 1985 and November 16, 1985. Therefore, the learned counsel submitted that in the absence of the evidence of Sundarakumar and Periathambi, there is no other independent witness except the evidence of one Natarajan, factory Manager of the second respondent-mill to establish the charges levelled against the petitioners. The said aspect also has not been taken note of by the first respondent.
6. Finally the learned counsel submitted that the second respondent has not complied with Para 4 of the order of the Special Deputy Commissioner of Labour, Madras, dated November 28, 1985, and has proceeded to dismiss the petitioners without reference to the said advice. For all the above reasons, the learned counsel submitted that the common award of the Labour Court in so far as it confirms the order of dismissal is liable to be set aside.
7. In reply to the above submissions, Sri S. Ravindran, learned counsel for the respondents would contend that it is true that the charges were levelled against the 17 workmen including the petitioners on August 21, 1985 and September 28, 1985. However, in the conciliation proceedings before the Special Deputy Commissioner of Labour, Madras, the management was represented by its representative and the 17 workmen were represented by the Vice President of the Union and the representatives of TNTUC. It was agreed before the Special Deputy Commissioner of Labour by the representatives of both the management and the 17 workmen to call off the strike and resume normal work with effect from December 2, 1985, out of 17 workmen involved in the disciplinary proceedings, the management shall revoke the order of suspension in respect of 10 workmen and permit them to resume work and the management shall also continue the order of suspension as against the remaining 7 workmen namely the petitioners pending enquiry and the management shall proceed to conduct the enquiry into the charges as against the petitioners. Only on the above advice, the second respondent-management proceeded against the petitioners alone and finally on the basis of the enquiry, the petitioners were dismissed from the services. The learned counsel would also submit that after agreeing to the above course and having acted upon, it cannot be now contended that the second respondent has discriminated the petitioners alone by proceeding with the enquiry. The learned counsel also submitted that the petitioners have not objected to the enquiry on this ground and they had participated fully in the enquiry and they had allowed the management to pass the orders on the basis of the report of the enquiry. The learned counsel further submitted that the Division Bench judgment of this Court relied upon by the learned counsel for the petitioners reported in India Cements Ltd. case (supra) in regard to the discrimination is not applicable to the facts of the present case inasmuch as that was a case where the enquiry was conducted as against 19 workmen and the charges levelled against all the 19 workmen were held proved and the workmen were dismissed. However, on the recommendation of the Minister for Labour, 14 workmen were let off from the punishment of dismissal and only the remaining workmen were dismissed and therefore the Court held that the act on the part of the management in taking the advice of the Minister for Labour
would amount to discrimination. However, in
the present case 10 workmen were not
proceeded with enquiry and the enquiry was
conducted only against 7 workmen namely the
petitioners and all of them have been dismissed
from service. Therefore, the learned counsel
submitted that the question of discrimination
having been not pleaded at the earliest cannot
be now pleaded.
8. In so far as the second contention of the learned counsel for the petitioners, the learned counsel for the respondents submitted that it is true that the respondents in Para 14 of the counter-affidavit has prayed the leave of this Court to eschew the evidence of Sundarakumar and Periathambi in respect of the incidents that took place on September 9, 1985 and November 16, 1985. However, even if the evidence of the said Sundarakumar and Periathambi are not taken into consideration, there is enough evidence of one more witness examined on behalf of the second respondent namely Sri Natarajan, factory Manager who has deposed in respect of the incidents that took place on August 19, 1985 and September 25, 1985. Therefore, the learned counsel submitted that it cannot be said that the order of dismissal based upon the enquiry report is bad.
9. In so far as the last submission of the learned counsel for the petitioners, he submitted that in view of the categorical findings of the enquiry officer holding the charges proved against the petitioners, the petitioners were dismissed from service under the relevant Standing Orders. Therefore, there was no necessity for the second respondent to place the above disciplinary proceedings before the Special Deputy Commissioner of Labour for his approval. Further more, the learned counsel submitted that in the Standing Order, such a compliance of the directions issued by the Special Deputy Commissioner of Labour is not contemplated. Hence, the learned counsel justified the common award passed by the first respondent.
10. Admittedly, by charge-memos, dated August 21, 1985 and September 28, 1985, 17 workmen were asked to submit their explanation with regard to the incidents that took place on the midnight of August 19, 1985 and at 7.00 a.m. on September 25, 1985. However conciliation proceedings were held before the Special Deputy Commissioner of Labour, Madras and when the disputes were taken up for discussion by him on November 20, 1985, November 21, 1985 and finally on November 28, 1985 the management was represented by Sri S. Devarajan, Director of the mills and the workmen were represented by Sri D. Shanmugam (TNTUC), Sri P. Thangavelu, Vice President, Salem District TNTUC, Sri M. Gurusamy, Secretary, TNTUC and Sri M. Periasami, worker in the mill. In order to end the prolonged strike and in the interest of maintaining industrial peace, the representatives of both the management and the workers accepted the suggestions of the Special Deputy Commissioner of Labour, Madras and agreed to follow those suggestions. Accordingly, the following suggestions made by the Special Deputy Commissioner of Labour were accepted by both the management and the representatives of the workmen and the same was issued in the proceedings of the Special Deputy Commissioner of Labour, Madras, in No. A3/76925 of 1985, dated November 28, 1985.
“(1) The workmen shall call off the strike and resume normal work effective from December 2, 1985. The workmen will not be entitled for any wages for the period of strike. The management in turn will not taken any disciplinary action against the workmen in connection with the strike, except in the case of the 17 workmen referred to above.
(2) Out of the 17 workmen involved in disciplinary cases, the management shall revoke the order of suspension in respect of the following 10 workmen and permit them to resume work on the dates specified against them. The workmen agreed that the period of no work/non-employment till the date of their actual resumption of work shall be treated as specific punishment. In view of this, the management shall drop all disciplinary proceedings against them.
Name of the worker
Date to report for work
Tvl. 1. Chinnasamy
2. P.G. Govindasamy
3. T. Ganesan
4. K.M. Raja
5. K.R. Rajendran
6. G. Narayanaswamy
7. K. Manoharan
8. K. Loganathan
6 December 1985
9. R.K. Palaniswamy and
10. C. Chellakkannu
16 December 1985
(3) In the case of the following 7 workmen, the suspension order already passed by the management will be accepted by them and as a consequence thereof, they will be under suspension – pending enquiry from the date the strike is called of.
1. T. Algappan
2. G. Ganesan
3. T. Mani
4. N. Johnrose
5. M. Rajendran
6. M. Ayyavu and
7. C. Rajagopal
They will be paid full monthly wages comprising of basic and D. A. based on their last drawn wages for their subsistence: during the period of suspension. The management shall proceed to conduct the enquiry into the charges against them and complete the enquiry proceedings within a period of 3 months from the date of resumption of work in the mill. The concerned workmen shall co- operate with the management in completing the enquiry expeditiously.
(4) On completion of the enquiry proceedings and after considering the nature of findings against them, the management will pass the order in respect of each of the 7 workmen independently. However, the order so passed by the management shall be kept in abeyance and a decision shall be taken in the matter only after discussions before the Special Deputy Commissioner of Labour, Madras.”
11. In view of the above consensus arrived between the representatives of the management and the workmen, the strike was called off with effect from December 2, 1985 and 8 workmen out of 17 reported for work on December 6, 1985 and 2 workmen reported on December 16, 1985. The petitioners who were 7 in number were continued under suspension and enquiry was conducted in respect of the charges. On the above facts, it should be now considered as to whether the action of the second respondent in initiating disciplinary proceedings against the petitioners alone would amount to discrimination and violative of Article 14 of the Constitution of India. The learned counsel for the petitioners relied upon a Division Bench judgment of this Court reported in India Cements Ltd. case (supra). In that case, the petitioner-union called for a strike during June 1971 which according to the management was illegal. Nineteen workmen were placed under suspension for participating in the strike and instigating the other workmen to continue the strike. In the presence of the Minister for Labour, a settlement was reached and one of the clauses in the settlement was that the “19 workers on suspension will be allowed to work without prejudice to the disciplinary proceedings pending against them but the final action to be taken will be decided in consultation with the Minister of Labour.” After the enquiry the management dismissed all the 19 workmen and the papers were placed before the Minister and the Minister reviewed the orders of dismissal and directed that “although there is case for severe disciplinary action in all the 19 cases on the basis of the evidence let in against them, a lenient view could be taken considering all relevant
circumstances in the case of the 14 workmen mentioned in Annexure 1. The 14 workmen should be taken into employment as new entrants, but without reduction in their last drawn emoluments and in the same occupations to which they were earlier attached…. there are no grounds for reopening the cases of the other 5 workmen mentioned in Annexure II.” On the above facts, the Division Bench held that when the charges framed against all the workmen are identical and the factual circumstances pertaining to them are the same and after the Minister had concluded that as against all of them are the same and after the Minister had concluded that as against all of them to proceed over the enquiry as there is a case for severe : disciplinary action, in the absence of any different material existing for those 5 workmen, they could not have been differently treated from the other 14 workmen. Accordingly, the Division Bench held that the action of the management in dismissing only 5 workmen out of 17 workmen against whom dismissal orders were passed by the management would amount to discrimination. In the present case, even though the charges framed against the 17 workmen are identical and the facts and circumstances pertaining to them are the same, during the conciliation proceedings before the Special Deputy Commissioner of Labour, Madras held on November 20, 1985, November 21, 1985 and November 28, 1985. the representatives of the management and all the 17 workmen participated in the discussion and only to end the prolonged strike and in the interest of maintaining industrial peace, they accepted the suggestions made by the Special Deputy Commissioner of Labour, Madras namely :
(1) to call off the strike with effect from December 2, 1985;
(2) to drop the disciplinary proceedings against 10 workmen and also revoking their suspension orders; and
(3) to keep the remaining 7 workmen (petitioners) under suspension pending enquiry and the management to proceed with the enquiry against them.
The second respondent has proceeded against the petitioners alone only in view of the above agreement entered into by them before the Special Deputy Commissioner of Labour, Madras. The said agreement was arrived only in the interest of maintaining industrial peace and also to end the prolonged strike. The petitioners were also represented by their representatives. Therefore, it cannot be now contended by the petitioners that the 10 workmen who were let off from the charges have been differently treated from the petitioners. In the Division Bench judgment relied upon by the learned counsel for the petitioners, there was no such agreement between the representatives of the management and the workers to drop the disciplinary proceedings only in respect of the 14 workmen and to proceed with the remaining 5 workmen. As extracted earlier, during the discussion it was agreed to permit all the workmen to be allowed to work without the disciplinary proceedings pending against them. Pursuant to the said settlement, enquiry was conducted and the charges against all the 19 workmen were held to be proved and based upon the said findings the management dismissed all the 19 workmen. However, after the orders of dismissal passed by the management, the papers were placed before the Minister for Labour for a decision. Only at that stage the Minister directed that 14 workmen who were dismissed from service shall be reinstated and the order of dismissal in respect of the 5 workmen should be given effect to. The Minister has not given any different material existing for the 5 workmen alone and in the absence of such material, they cannot be treated differently with the remaining 14 workmen for the purpose of imposing the punishment of dismissal. Therefore, in my considered view, the said judgment relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case. On merits, as discussed by me above, the action of the second respondent in initiating disciplinary proceedings against the petitioners alone cannot be considered as discriminatory. It is to be further seen that pursuant to the proceedings of the Special Deputy Commissioner of Labour, dated November 28, 1985, the remaining 10 workmen were allowed to join work and the disciplinary proceedings were initiated only against the petitioners and the petitioners have never objected to such course adopted by the second respondent. In fact, the said proceedings of the Special Deputy Commissioner of Labour, Madras, were given effect to and acted upon by the union which was represented by the representatives by calling on the strike also. It is also to be seen that the Labour Court on appreciation of evidence of Natarajan has come to the conclusion that a distinction in classification became necessary because the 7 petitioners/workmen have not only conducted the illegal strike but also resorted to violent behaviour and assaulted the co-workers. Therefore, on the facts and circumstances of the case, the submission made by the learned counsel for the petitioners that the impugned orders of dismissal are liable to be set aside on the ground of discrimination and violative of Article 14 of the Constitution of India cannot be accepted and accordingly, I reject the same.
12. Coming to the second submission made by the learned counsel for the petitioners that admittedly the respondents have prayed for leave of this Court to eschew the evidence of Sundarakumar and Periathambi who have deposed only about the incidents that have taken place on September 9, 1985 and November 16, 1985 and in the absence of their evidence as to the changes whether it would be appropriate for the first respondent to come to the conclusion that the charges levelled against the petitioners had been proved. It is to be seen that barring the two statement of evidence viz., Sundarakumar and Periathambi, the Factory Manager of the second respondent-mill by name R. Natarajan has spoken to about the incidents for which the petitioners were issued with the charge-memos. In his statement, he has categorically stated that the petitioners were involved in attack on co-workers and prevented the loyal workers from entering into the factory premises forcibly. It is to be noted that in the disciplinary proceedings conducted by the management, strict rule of evidence need not be insisted upon. The Supreme Court in the judgment reported in the (State of Haryana v. Ratan Singh) while considering the applicability of strict rule of evidence under the Indian Evidence Act held thus at p. 47 of LLJ:
“It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to heresay evidence provided it has reasonable nexus and creditability. It is true that departmental authorities and administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is basis and if perversity of arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic Tribunal, cannot be held good. However, the Courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the Tribunal before the valid finding could be recorded. The “residium” rule to which counsel for the respondent referred, based upon certain passages’ from the American Jurisprudence does not go to that extent nor does the passage from the HALSBURY insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence – not in the sense of the technical rules governing regular Court proceedings but in a fair commonsense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the face of the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable, to hold that the order is invalid on that ground.”
Therefore, even in the exclusion of the evidence of Sundarakumar and Periathambi, the evidence of Natarajan, factory Manager would be sufficient to hold that the charges against the petitioners are proved. Therefore, I reject the contention of the learned counsel for the petitioners that the charges have not been proved in the manner known to law.
13. Coming to the last submission made by the learned counsel for the petitioners that in the absence of compliance of Para 4 of the proceedings of the Special Deputy Commissioner of Labour, Madras, dated November 28, 1985, the entire disciplinary proceedings are vitiated, it is to be noted that in the said paragraph, the Special Deputy Commissioner of Labour has directed the second respondent that on completion of the enquiry proceedings and after considering the nature of findings against them, the management will pass the order in respect of each of the 7 workmen independently. However, the order so passed by the management shall be kept in abeyance and a decision will be taken in the matter only after discussions before the Special Deputy Commissioner of Labour, Madras. In my view such a direction cannot be in law sustainable since under the Standing Order, there is no provision brought to my notice enabling the management to place such a decision before the Special Deputy Commissioner of Labour before passing final orders. Moreover, once the charges are proved, against the workmen, a right vests with the management to take further action on the basis of the enquiry conducted. Only in the event if any final decision is taken and orders passed as to the punishment and only in the event if any dispute is raised, the role of the Special Deputy Commissioner of Labour would come into play. In my view, the directions issued by the Special Deputy Commissioner of Labour, Madras in Para 4 of his proceedings, dated November 28, 1985, cannot be in any way taken advantage of by the petitioners for challenging the orders of dismissal made on the basis of the report of the enquiry. When once it was agreed for an enquiry to be conducted against the petitioners before the Conciliation Officer, Conciliation Officer cannot impose any restrictions on the management from proceeding with the findings of such enquiry and pass orders and impose punishment depending upon the seriousness of the offence. Therefore, non-compliance of Para 4 of the proceedings of the Special Deputy Commissioner of Labour, dated November 28, 1985, will not in any way vitiate the orders of dismissal passed by the second respondent.
14. For all the foregoing reasons, all the contentions raised by the learned counsel for the petitioners are rejected and I do not find any merit in the writ petition to interfere with the common award passed by the first respondent. Accordingly, the writ petition fails and the same is dismissed. No costs.
