IN THE HIGH COURT OOF JUDICATURE AT MADRAS
Dated: 18/04/2005
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice S.K. KRISHNAN
Writ Appeal No. 491 of 2001
and
C.M.P.No. 3910 of 2001
The Management of
Aurofood Private Limited,
Auroville-605 101. .. Appellant/First Respondent.
-Vs-
1.S. Rajulu, .. Petitioner.
2. The Presiding Officer,
Labour Court, Cuddalore. .. 2nd Respondent.
.. Respondents.
Writ Appeal filed under Clause 15 of Letters Patent, against order of
Single Judge dated 9-2-2001 in Writ Petition No. 69 of 1994.
!Mr. S. Ravindran for M/s. T.S. Gopalan:- For
Appellant.
^Mr. N.G.R. Prasad for M/s. Row and Reddy:-
For 1st Respondent.
:JUDGEMENT
(Judgement of the Court was delivered by P. Sathasivam, J.,)
The Management of Aurofood Private Limited, aggrieved by the order of
the learned Single Judge dated 9-2-2001, made in Writ Petition No. 69 of
1994, has filed the above Writ Appeal.
2. Brief facts which are required for the disposal of this Appeal
alone are stated hereunder:
First respondent herein was employed as a packer in the packing department of
appellant biscuit factory from 6-4-1974. While so, in 1981 he was served with
two charge memos. The first charge memo dated 28-4-1981 relates to misconduct
that he was found eating biscuits while he was packing the biscuits and the
second charge memo dated 1 1-8-1981 is that he had abused his supervisor in
filthy language. It is not in dispute that an enquiry was conducted on the
said charges and ultimately he was found guilty of both the charges.
Thereafter, the management issued a show cause notice on 13-10-1981 proposing
to dismiss him from service to which he submitte d his explanation on
19-10-1981. The management not satisfied with his explanation dismissed him
from service by order dated 5-11-1981. Aggrieved by the same, the workman
raised an industrial dispute in I.D.No. 41/92 before the Labour Court,
Cuddalore/2nd respondent herein. By award dated 30-3-1993, the Labour Court
upheld the order of dismissal dated 5-11-1981 and confirmed the order of
dismissal. Questioning the same, the workman preferred Writ Petition No.
69/94 before the learned Single Judge of this Court. By the impugned order,
the learned Judge, after finding that though the management took the records
of past service into account for the purpose of imposing the punishment of
dismissal, no opportunity was given to him, set aside the order of dismissal
and ordered reinstatement with back wages except for the period of delay of 3
years with continuity of service etc. Questioning the same, the management
has filed the present appeal.
3. Heard Mr. S. Ravindran, learned counsel for the appellant-management; and Mr. N.G.R. Prasad, learned counsel for first respondent-workman.
4. There is no dispute that in respect of two charges leveled against
the workman, an enquiry was conducted and ultimately both the charges were
found proved and after notice to him, he was dismissed from service. Though
at this stage there is no need to go into the details regarding charges,
however, considering the gravity of the punishment, namely, dismissal, it is
desirable to refer both the charges. The charges relate to that on 24-4-1981
while he was on duty at about 9-10 A.M. the workman was found sitting
leisurely, eating biscuits near the packing material stores. When he was
questioned by the supervisor, he abused him in filthy language. The exact
charges are reproduced in pages 18 and 19 of the typed-set of papers filed by
the counsel for the appellant and we also verified the same.
5. Now let us consider the order of dismissal dated 5-11-81. At this
juncture, Mr. N.G.R. Prasad, learned counsel for the workman, by drawing our
attention to the fact that the workman being a last grade servant, namely,
packer working in the packing department, was unable to understand the
materials placed and the procedure that was followed in the enquiry, requested
the management to furnish required materials in the language known to him,
namely, in Tamil. It is also brought to our notice that the workman has made
a specific request for supply of relevant materials in Tamil language. The
communication of the management shows that his request was not acceded to and
the fact remains that the workman was not given relevant materials/documents
in the language known to him. According to Mr. Prasad, that was the reason
that the workman did not send explanation to the second show cause notice till
final order passed on 5-11-1981. We also verified the grievance expressed by
the workman seeking required materials in Tamil language and the intimation of
the management declining his request and we are satisfied that Mr. N.G.R.
Prasad is right in contending that the workman was not given adequate
opportunity to put-forth his defence.
6. Though Mr. S. Ravindran, learned counsel for the
appellant-management, contended that the management has not taken into
consideration the past service records and the outcome of two charges leveled
against him alone were sufficient and accordingly the management passed an
order dismissing him from service. On going through the order of dismissal
dated 5-11-81, we are unable to accept the said contention, since in the
penultimate paragraph it is stated that, “This order of dismissal has been
passed after having taken into account the gravity of the misconducts
committed by you and your antecedents and other extenuating and aggravated
circumstances”. As rightly observed by the learned Single Judge, though the
management has considered the antecedents of the workman, absolutely no
details have been furnished and the same were not put on notice to the workman
in order to making effective representation in respect of the proposed
punishment. As rightly stated, mere reference to the past record of service
would not satisfy/comply the principles of natural justice. It is true that
the management is free to impose appropriate punishment even on a solitary
incident, but as correctly observed by the learned Judge, if the management
refers to the antecedents or past record of service while inflicting
punishment, it is but proper for them to see that opportunity was given to the
workman to make his case/ defence over his past record of service while
imposing major punishment of dismissal. Though the Labour Court has failed to
consider the said aspect, the same was rightly considered and accepted by the
learned Single Judge and we are in agreement with the said conclusion. Though
Mr. S. Ravindran, learned counsel for the appellant, relied upon a decision
of the Apex Court in N.T.C (WBAB & O) Ltd., v. Anjan K. Saha, reported in
2004 (4) CTC 455, on going through the factual details, we are of the view
that the same is not applicable to the case on hand.
7. It is also contended by the learned counsel for the appellant that
the workman has not raised the plea, namely, that he was not afforded
opportunity with regard to past record of service. By relying on a decision
of the Supreme Court in Municipal Committee Tauru v. Harpal Singh, reported
in (1998) 5 Supreme Court Cases 6 35, the counsel would contend that even in
labour matters there must be a specific plea or defence and in the absence of
the same, no relevance can be granted by the Court. According to him, there
is no such plea in the claim petition filed by the workman. It is true that
in the said decision, Their Lordships have held that even in labour matters a
claimant goes before the Court or Tribunal with a case and it is upon the
merits of that case that relief is to be granted or refused to him. They
further held that there is no substantial justice when the Court or Tribunal
gives relief to a workman which is on a basis that is totally contrary to the
basis upon which he approached it; which, indeed is the employer’s case. They
also held that substantial justice must be done both to the employer and he
employees. Though specific plea was not taken, but if we read the entire
claim petition, we are able to see the grievance of the petitioner and we are
satisfied that such objection has been taken though not directly, accordingly
the said decision is also not helpful to the appellant’s case.
8. The learned counsel for the appellant by relying on a decision of
the learned Single Judge of this Court in N. Karunakaran v. P.O., Labour
Court, reported in 2000 (1) L.L.N. 299, would contend that since the workman
was given adequate opportunity at the time of enquiry, the management is right
in considering his antecedents while passing the order of dismissal. A
perusal of the said decision shows that the management before the learned
Single Judge had chosen to lead evidence before the Labour Court with
reference to the past conduct of the workman and the workman had ample
opportunity to cross-examine the witness who was examined on behalf of the
company with reference to the past conduct of the workman. In such a
circumstance, the learned Single Judge has arrived at a conclusion that the
submission that the past conduct of the workman was taken into account without
affording an opportunity to the petitioner as the witness who was examined
before the Labour Court and the petitioner had the opportunity to
cross-examine the witness and the Labour Court has found that the past conduct
of the petitioner was proved by the evidence let in on behalf of the
management. While agreeing with the proposition of law, the factual position
in our case differs since we have already referred to the grievance of the
workman that he was not given materials in the language known to him and he
being a last grade servant, it cannot be construed that he was given adequate
opportunity, as provided in the case before the learned Judge; accordingly,
the said decision is not helpful to the appellant’s case.
9. Finally, Mr. S. Ravindran by relying on a latest judgement of
the Supreme Court in Mahindra and Mahindra Ltd., v. N.B. Narawade, reported
in (2005) 3 Supreme Court Cases 134, would contend that in view of the fact
that one of the charges namely, use of filthy language to his superior has
been proved, the management is justified in imposing the punishment of
dismissal. In the reported decision, it is seen (para 9) that the workman
concerned had been charge sheeted several times earlier and on every such case
of misconduct, the management took a lenient view and imposed minor
punishments. It is further seen that on 6-9-1988 the said workman had
assaulted his co-worker with a galvanized pipe weighing about 2 Kg causing
grievous injury. Even in such a situation, the workman therein was only
punished with suspension of four days. In the last incident, when his
supervisor asked him to do a particular job which was entrusted to him, he
allegedly told the supervisor to call the Engineer-in-charge so that he could
talk to him rather than the supervisor and when the Engineer came and
requested him to carry on with the work, he abused the supervisor in very
filthy language in the presence of his subordinates and later on when the
Engineer went back to his cabin he followed him to the cabin and again abused
him in the presence of a member of the labour union in similar language and
even threatened him. In those circumstances, the Hon’ble Supreme Court while
disagreeing with the labour court and the High Court, upheld the order of
dismissal imposed by the management. In the case on hand, we have already
referred to the charges leveled against the workman. The first one is that he
was eating biscuits while doing the work of packing biscuits and the next one
is when the same was questioned by his supervisor, the workman replied that he
(supervisor) also committed the same on several occasions. In the case on
hand, the person questioned is a supervisor and the way in which the workman
replied shows that the supervisor was also in the habit of eating biscuits
during working hours and that was the reason which provoked the workman to
reply harshly questioning the conduct of his supervisor. We must also
consider the above referred surrounding circumstances that the workman being
illiterate last grade servant (packer). All these aspects including
surrounding circumstances have been rightly taken note by the learned Judge
while considering the punishment inflicted on him. After analyzing all the
details, we are satisfied that the case before the Supreme Court is very harsh
which made the Supreme Court in confirming the order of dismissal. In the
light of our discussion, and the factual details which we have already
referred to, the same rigor may not be applied to the case on hand;
accordingly the said decision is also distinguishable and not applicable to
the case on hand.
10. We are satisfied that the learned Judge has considered all the
materials, including the surrounding circumstances while interfering with the
order of the Labour Court. As rightly observed by the learned Judge, though
the Labour Court is vested with the power to interfere with the punishment
under Section 11-A of the Industrial Disputes Act, 1947, the same has not been
considered and the learned Judge after finding that there is a violation of
natural justice, considering the surrounding circumstances, the workman being
an illiterate last grade servant (packer) and of the fact that the punishment
of dismissal shocks the conscience of the Court, rightly interfered and set
aside the order of dismissal and ordered reinstatement with back wages. It is
also relevant to mention that taking note of the delay of 3 years in
approaching the Labour Court, the learned Judge has rightly dis-allowed the
back wages for a period of 3 years. We are in agreement with both the
conclusions of the learned Judge and there is no merit in the appeal filed by
the management; accordingly the Writ Appeal fails and the same is dismissed.
No costs. Connected C.M.P. is closed.
R.B.
Index:- Yes.
Internet:- Yes.
To:-
1. The Presiding Officer, Labour Court, Cuddalore.