{"id":36882,"date":"2009-08-14T00:00:00","date_gmt":"2009-08-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-management-vs-the-presiding-officer-on-14-august-2009"},"modified":"2014-08-22T07:13:09","modified_gmt":"2014-08-22T01:43:09","slug":"the-management-vs-the-presiding-officer-on-14-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-management-vs-the-presiding-officer-on-14-august-2009","title":{"rendered":"The Management vs The Presiding Officer on 14 August, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
The Management vs The Presiding Officer on 14 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 14\/08\/2009\n\nCORAM\nTHE HONOURABLE MR. JUSTICE B.RAJENDRAN\n\nWRIT PETITION (MD) No.2521 of 2005\nand\nW.P.M.P.(MD)No.2554 of 2005\n\nThe Management,\nHariharaputhra Estate,\nNetta,\nKanyakumari District rep.\nthrough its General Manager,\nG.Sreenath.                                  ...   Petitioner\n\nvs\n\n1.The Presiding Officer,\n  Labour Court,\n  Tirunelveli.\n2.Y.Chellayyan\n3.A.Rajappan\n4.P.Johnson                                  ...   Respondents\n\t\nWrit Petition filed under Article 226 of the Constitution of India to\nissue a Writ of Certiorari to call for the records relating to the common Award\npassed by the first respondent in I.D.Nos.638\/1992, 642\/1992 and 644\/1992 dated\n27.1.2003 and to quash the same in relating to the relief granted to the\nrespondents 2 to 4.\n\t\n!For petitioner     ... Mr.P.Chandra Bose\n^For respondents    ... Mr.S.James for R2       \t\n                        Mr.M.Gnanagurunathan\n                        for R3 & R4\t\t\t\n\n:ORDER\t\n<\/pre>\n
\tThe Petitioner\/Management, a Rubber Estate represented by its General
\nManager has filed this Writ Petition challenging the common award passed in
\nI.D.Nos.638\/1992, 642\/1992 and 644\/1992 dated 27.1.2003  by the Presiding
\nOfficer of the Labour Court, Tirunelveli.\n<\/p>\n
\t2. The contention of the petitioner is that it is a Rubber Estate situated
\nin Kalial village in Kanayakumari District.   In this Estate, there were 70
\nworkmen viz., 45 tappers and 25 General Workers (Field Workmen) and the
\nrespondents 2 to 4 were working as tappers in the petitioner’s estate.
\nRespondent Nos.2 and 3 along with some others were placed under suspension by
\norder dated 14.4.1990 for refusing to do  loading work.   As they were suspended
\nemployees, they were prohibited from entering into the Estate.  However, on
\n18.4.1990, at about 8.30 a.m., they unauthorisedly came into the Estate and
\nwrongfully confined (gheraoed) the Administrative Officer, the Assistant
\nSuperintendent of the Estate and the Jeep Driver of the Administrative Officer
\non the road in front of the Estate Factory situated in the Peramalai Division of
\nthe Estate. They did not allow the Administrative Officer and others to move
\naway from the place.  At about 9 a.m., three tappers namely, E.Nelson, P.Johnson
\n(4th respondent) and R.Selvaraj also joined the gherao stopping their work and
\nleaving their work place in the Estate.   Later on, police was informed and the
\npolice came there and asked the workers indulged in gherao to get dispersed.
\nThe workers even refused to give some drinking water for the Administrative
\nOfficer who was wrongfully confined and only after 2.00 p.m., after much
\npersuasion, gherao was lifted and the Administrative Officer was released.   All
\nthe workmen who had indulged in gehrao were given charge memo (show-cause
\nnotice) dated 24.4.1990.  As per the said notice, the three tappers viz.,
\nE.Nelson, P.Johnson (4th respondent) and R.Selvaraj were also placed under
\nsuspension.  The workmen to whom show cause notices were sent refused to accept
\nthe notice except C.A.Chellayyan.  The notices were returned as “refused”.  The
\nfourth respondent who had refused to receive the show cause notice dated
\n26.4.1990 had committed other misconduct also.  On 21.4.1990 at about 6.45 a.m.,
\nwhen Sri Krishna Nair one of the staff member of the petitioner was proceeding
\nto Pannimala Division, P.Johnson, the fourth respondent abused him by filthy
\nlanguage in Malayalam and pushed him away and thereby prevented him from going
\nto the work.  For this, a separate charge sheet was also given on 26.4.1990.  He
\nfurther committed another serious misconduct.  On 7.5.1990 at about 5.15 am., he
\nalong with other workmen closed the main gate and small gate of the Estate
\nFactory situated in Peramalai Division and thereby caused obstruction for other
\nworks to go for work.  He has even threatened another employee with dire
\nconsequences including the threat of physical assault.  For this, a separate
\ncharge sheet was given on 4.6.1990.  The third respondent also indulged in the
\ncommission of offence and he was also issued charge memo dated 14.6.1990.
\nFifteen workmen including the eight workmen who wrongfully confined the
\nAdministrative Officer on 18.4.1990 and prevented tapping and field work from
\nbeing performed for a number of days, were given charges, an enquiry was
\nconducted and after enquiry, they were dismissed from service.  The charges
\nlevelled against them were found proved in a properly conducted enquiry.  The
\nmanagement was able to identify seven workmen who did not participate in the
\nenquiry but participated in the prevention of work.   They are (i) C.Johnson,\n<\/p>\n
(ii) N.Baby, (iii) Jainy, (iv) Echooty), (v) Sarojini, (vi) Devaky and (vii)
\nKamalabi.\n<\/p>\n
\t3. All those 15 workers were dismissed from service after giving
\nreasonable opportunities to defend their case pursuant to the findings of the
\nenquiry officer.  Seven employees who did not participate in the serious charge
\nof gherao and wrongful confinement of the Administrative Officer of the
\nManagement but charged for participating only in preventing the workmen,
\nsubmitted a written apology for the misconduct committed by them, through their
\nunion.  There was a Bi-partite Settlement dated 7.5.1991 with the office bearer
\nof Kumari Mavatta Thotta Thozhilalar Sangam who also represented the respondents
\nbefore the Conciliation authorities.  As per the term of settlement, the said
\nseven persons who had tendered unconditional apology were reinstated in service
\nand as per the settlement, the period between the dismissal and the
\nreinstatement was treated as Leave on Loss of Pay and no backwages was paid but
\nthey were reinstated. The management also produced a copy of the settlement
\nentered into between the management and the labour union. In that settlement, it
\nwas also made clear in Term No.2 that reinstatement of the said employees was
\nconsidered as a special case on their giving apology letter and in view of the
\nsame, punishment of dismissal was modified treating it as absent on loss of pay
\nfrom the date of dismissal to the date of reinstatement.  Term No.2 of the
\nSettlement is extracted hereunder for reference.\n<\/p>\n
\t“2. It is mutually agreed that the following workmen namely (1) N.Baby,
\n(2) C.Johnson, (3) Jainy, (4) Echoothy, (5) Sarojini, (6) Devaky, (7) Kamalabai
\nwho were found guilty of the charges levelled against them, after a duly held
\ndomestic enquiry and who were dismissed from service will, as a special case, be
\nreinstated in service on their giving an apology letter and that, by way of
\ntoken punishment, the period from the date of dismissal to the date of
\nreinstatement as per this clause will be treated as absence from work on loss of
\npay.”\n<\/p>\n
\t4. It is the contention of the learned counsel for the petitioner that
\ninspite of the specific understanding and agreement between the management and
\nthe union, till date, the respondent Nos.2 to 4 never offered or tendered any
\napology but instead, they had challenged the matter before the Labour Court and
\na common award was passed.  It is the further contention of the learned counsel
\nfor the  petitioner that the Labour Court did not take into consideration the
\nseriousness of the offence committed by the respondents 2 to 4 but it only took
\ninto consideration the subsequent event viz, settlement arrived at between the
\nmanagement and the union insofar as it relates to the tendering apology of seven
\npersons and reinstatement thereon.  Further, the Labour court has given a
\nfinding that though the enquiry was correct, subsequent event proved that there
\nwas discrimination  in the punishment given to the respondents 2 to 4 herein and
\nhence, it ordered for reinstatement of the respondents 2 to 4 with backwages,
\nwhich is under challenge in this Writ Petition.\n<\/p>\n
\t5. Respondent 2 to 4 are represented by Advocates.  As far as the 2nd
\nrespondent is concerned, the Advocate and the Management has fairly submitted
\nthat subsequently, in view of the fact that the 2nd respondent has already
\nsuperannuated and also entered into a compromise arrived at settlement and in
\nview of the settlement, gratuity amount alone was received in full quit of all
\nthe claims.  Therefore, insofar as the second respondent, the matter has been
\nsettled and he quit all the claims.  In fact, in the letter given to the
\nmanagement dated 15.2.2007, the second respondent has categorically stated that
\nhe is not interested in contesting the case.  The translated copy of the letter
\nwritten by the second respondent was produced before the Court.  The management
\nhas also produced receipt given by the second respondent dated 1.3.2007 for full
\npayment of the gratuity amount.  Hence, insofar as the second respondent is
\nconcerned, the matter has been settled. The letter of the 2nd respondent forms
\npart of the records.\n<\/p>\n
\t6. The third and fourth respondents contested the case on merits and the
\nAdvocate representing the third and fourth respondent also fairly submitted that
\ninsofar as the third respondent is concerned, though the third respondent has
\nalready superannuated, the learned Advocate is arguing the case in respect of
\nthe benefits what the third respondent could have got had the third respondent
\nwas reinstated.\n<\/p>\n
\t7. The only contention made by the learned counsel for the third and
\nfourth respondents was that there was a categorical discrimination as against
\nthe respondent Nos.3 and 4 when compared to other seven workers who have been
\nreinstated.  Hence, he is contesting the case on merits and the order passed by
\nthe Labour court was correct on the ground of discrimination meted out to
\nrespondents 3 and 4 and so  substantiated their case.\n<\/p>\n
\t8. Heard all the parties concerned.\n<\/p>\n
\t9. The short question which is to be decided in this Writ Petition is
\nwhether the settlement arrived at between the management and the dismissed
\nemployees subsequent to the order of dismissal by virtue of tendering of apology
\nletter and their reinstatement vis-a-vis the persons who have not tendered
\napology letter could be called as discrimination in respect of imposition of
\npunishment insofar as it relates to non-reinstatement.\n<\/p>\n
\t10. Learned counsel for the petitioner vehemently argued that it is a case
\nwhere the differences between the respondents 2 to 4 and the persons who have
\nbeen reinstated can never be called as discrimination for the following
\nreasons:-\n<\/p>\n
\t (i) Action was taken against all the 15 employees and dismissal order was
\npassed against all of them originally.  It is later on pursuant to the
\ninitiation of the union, a compromise was arrived at and seven of them gave a
\nletter tendering unconditional apology when they represented through their
\nunion.  The management agreed to reinstate them based on their unconditional
\napology, of course, without backwages for the interregnum period i.e. from the
\ndate of dismissal till the date of reinstatement, which are treated as absent
\nand loss of pay.\n<\/p>\n
\t(ii) Insofar as the respondents 2 to 4 are concerned, even though there
\nwas a specific clause viz., “clause No.3” in the settlement arrived at between
\nthe management and the union giving a period of six months for bipartite
\ndiscussion with a view to find an amicable settlement, the respondents 3 and 4
\nnever came forward for the discussion nor tendered apology or approached their
\nunion for such an amicable settlement. Clause No.3 of the Settlement arrived on
\n7.5.1991 is extracted hereunder for reference:\n<\/p>\n
\t“3. It is agreed by and between the parties that the demand of the Union
\nfor reinstatement of 1.Augustine (2) P.Johnson (3) E.Nelson (4) E.Selvaraj (5)
\nC.A.Chelliar (6) Y.Chellaian (7) A.Rajappan (8) Sanalkumar, who were found
\nguilty of charges levelled against them in two separate domestic enquires duly
\nheld, and who were dismissed from service of the management, will be again taken
\nup for bipartite discussion with a view to find an amicable settlement within a
\nperiod of 6 months.”\n<\/p>\n
\t11. In support of his contention, the learned counsel for the petitioner
\nclearly argued that pursuant to the decision of the Supreme Court, it cannot be
\nstated that there is discrimination or differentiation between persons who have
\ntendered apology and persons who have not tendered apology as they do not stand
\non the same footing.  Seven persons were taken back in the service without
\nbackwages based on their apology and apart from that the charges levelled
\nagainst them were not so grave as they did not assault or gheraoed the
\nAdministrative Officer of the Management or they did not prohibit any officers
\nof the Management but they only obstructed certain people from doing work and so
\nthey have not done heinous crime.  Thus, the people who were reinstated were
\nonly who committed offence of less gravity and hence, they have been allowed to
\nbe reinstated.  However,  respondents 3 and 4 herein originally participated in
\ngheraoing and obstructing the personnels of the management and workers from
\ndoing their work and especially the fourth respondent has not only at one
\noccasion but on  very many occasion acted so.  Both third and fourth respondents
\ntook law into their hands and troubled the management.  Apart from that, they
\nnever chose to tender apology to the management instead they contested the
\npunishment awarded to them.\n<\/p>\n
\t12. For this proposition, the learned counsel relied on the following
\njudgments reported in 2004 III CLR 755 [Managment of Krishnakali Tea Estate v.
\nAkhil Bharatiya Chah Mazdoor Sangh & Another<\/a>], where Hon’ble  Three Judges Bench
\nof the Hon’ble Supreme Court has categorically held that gheraoing and
\nwrongfully confining the Manager are all sufficient to come to the conclusion
\nthat the concerned workmen have indulged in misconduct.   Their Lordships  have
\nfurther held in paragraph No.30 that inspite of settlement with some other
\nworkmen who are found guilty of charges would not in any manner, reduce the
\ngravity of the misconduct in regard to the workmen concerned.  Paragrah No.30 of
\nthe said judgment is extracted hereunder for reference.
\n\t“30. This leaves us to consider whether the punishment of dismissal
\nawarded to the concerned workmen de hors the allegation of extortion is
\ndisproportionate to the misconduct proved against them.  From the evidence
\nproved, we find the concerned workmen entered the estate armed with deadly
\nweapons with a view to gherao the manager and others in that process they caused
\ndamage to the property of the estate and wrongfully confined the manager and
\nothers from 8.30 p.m., on 12th of October to 3 a.m., on the next day.  These
\ncharges, in our opinion, are grave enough to attract the punishment of dismissal
\neven without the aid of the allegation of extortion.  The fact that the
\nmanagement entered into settlement with some of the workmen who were also found
\nguilty of the charge would not, in any manner, reduce the gravity of the
\nmisconduct in regard to the workmen concerned in this appeal because these
\nworkmen did not agree with the settlement which others are agreed instead chose
\nto question the punishment.”\n<\/p>\n
In the present case, the respondents 3 and 4 did not agree to the settlement
\nwhich other workers agreed to  but instead, chose to question the punishment.\n<\/p>\n
\t13. The learned counsel also relied on the judgment reported in 2005 III
\nCLR 569 (Obettee Pvt.Ltd. v. Mohd.Shafiq Khan),<\/a> where the Hon’ble Supreme Court
\nin identical matter held that workers who have given apology and the workers who
\nhave not given apology can not be stated to be on the same footing and same
\nyardstick cannot be applied.  In paragraph Nos.8 and 9, the Hon’ble Supreme
\nCourt has held as follows:\n<\/p>\n
\t“8. On consideration of the rival stand one thing becomes clear that
\nChunnu and Vakil stood at different footing so far as the Respondent-workmen is
\nconcerned.  He had unlike the other two, continued to justify his action.  That
\nwas clearly distinctive feature, which the High Court unfortunately failed to
\nproperly appreciate.  The employer accepted to choose the unqualified apology
\ngiven and regrets expressed by Chunnu and Vakil.  It cannot be said that the
\nemployer had discriminated so far as the Respondent-workman is concerned,
\nbecause as noted above he had tried to justify his action for which departmental
\nproceedings were initiated.  It is not that Chunnu and Vakil were totally
\nexonerated.  On the contrary, letter of warning dated 11.4.1984 was issued to
\nthem.\n<\/p>\n
\t9. In Union of India v. Parma Nanda 1989 II CLR 1 SC the Administrative
\nTribunal had modified the punishment on the ground that two others persons were
\nlet out with minor punishment.  This Court held that when all the persons did
\nnot stand on the same footing, same yardstick cannot be applied.  Similar is the
\nposition in the present case.  Therefore, the High Court’s order is clearly
\nunsustainable and is set aside.”\n<\/p>\n
\t14. In the above decisions, the Hon’ble Supreme Court has categorically
\nheld that when there are two sets of workers especially one who has accepted,
\nagreed and also tendered apology would definitely be treated in a different way
\nand merely because good treatment is given for tendering apology that would not
\nby itself make the punishment given to others as discriminatory.\n<\/p>\n
\t15. Apart from this, the learned counsel brought to the notice of this
\nCourt the judgment of a Division Bench consisting of Justice Sri Markandey Katju
\n(the Hon’ble Chief Justice as he then was) and  Justice Smt.Prabha Sridevan of
\nthis Court reported in 2005 (2) L.L.N.512 [Between Management of T.I.Diamond
\nChain Ltd., Chennai and (1) P.L. Ramanathan (2) Presiding Officer, I Additional
\nLabour Court, Chennai wherein it has been held in paragraph No.5 as follows:
\n\t“5. … employees Dhanuskodi, Kandasami and Shanmugam have tendered
\napology and hence they were given minor punishment whereas the respondent
\nworkman did not tender apology.  Hence, the cases are distinguishable.  In the
\nfacts and circumstances, we are of the opinion that the Labour Court was not
\njustified in directing the reinstatement of the respondent-workman with fifty
\nper cent backwages.  We, therefore, modify the award of the Labour court and the
\nimpugned order of the learned single Judge and direct that the respondent
\nworkman shall stand dismissed from the date of dismissal order passed by the
\nappellant-management.”\n<\/p>\n
\t16. In the said case, their Lordship have held that employees Dhanuskodi,
\nKandasami and Shanmugam have tendered apology and hence they were given minor
\npunishment whereas the respondent workman did not tender apology.  Hence, the
\ncases are distinguishable.  and that the Labour Court was not justified in
\ndirecting the reinstatement of the respondent-workman with fifty per cent
\nbackwages.  Therefore, Their  Lordships modified the award of the Labour court
\nand directed that the respondent workman shall stand dismissed from the date of
\ndismissal order passed by the appellant-management.\n<\/p>\n
\t17. In the present case, the respondents 3 and 4 neither tendered apology
\nnor approached the Management for settlement.  The workers who tendered apology
\nwere reinstated considering the gravity of charges levelled against them were
\nless.  Therefore, the cases are distinguishable. The facts of the above case is
\nin pari-materia to the case in hand and the Judgments squarely applies to the
\npresent case.\n<\/p>\n
\t18. Per contra, the learned counsel appearing for the respondents 3 and 4
\nwould contend that there is distinctive features in respect of treatment meted
\nout to the respondents 3 and 4 and that seven persons who have been reinstated.\n<\/p>\n
\t19. The learned counsel relied on the judgment of this Court reported in
\n2007 Writ L.R.52 [N.Nandagopalan v. The Secrtary to Government] and 2007 Writ
\nL.R.632 [The Managment of LUK India Private Ltd., v. The Presiding Officer,
\nLabour Court, Salem and<\/a> 2 others] for the proposition that if employees were
\ninvolved in the same incident, the Department should proceed against all or
\nshould not proceed against any one.  There is no discretion to proceed against
\nsome of employees and no action taken against other employees, when they are
\nidentically placed, and their involvement being identical.\n<\/p>\n
\t20. Both the decisions are clearly distinguishable insofar as the present
\ncase is concerned.  It is not the case of the respondents 3 and 4 that there was
\nno action taken against other persons whereas admittedly, dismissal order was
\npassed against all the 15 employees.  It was only subsequent to punishment
\ngranted, the compromise was arrived at, at the instigation of union and others
\nand the union further stated that the same would be extended to the respondents
\nalso since they did not proceed further or even tendered apology till date.
\nHence, the judgments relied on by the learned counsel for the respondents 3 and
\n4 will not be applicable to the facts of the present case.\n<\/p>\n
\t21. However, the judgment of the Division Bench of this Court reported in
\n2005 (2) L.L.N.512 cited supra is in pari-materia with the facts of the case on
\nhand and is squarely applicable to the present case.  This Court is bound by the
\ndecision of the Division Bench of this Court and the decision of the Hon’ble
\nSupreme Court.\n<\/p>\n
\t22. Therefore, without any hesitation, the award of the Labour Court
\ninsofar as it relates to respondent Nos.3 and 4 is set aside and reinstatement
\ngranted by the Labour Court in respect of respondent Nos.3 and 4 is set aside
\nand the dismissal order of the Management is confirmed insofar as respondents 3
\nand 4 are concerned.  As far as the 2nd respondent is concerned, the matter is
\nsettled between the parties and the same is recorded.\n<\/p>\n
\t23. In the result, the Writ Petition is allowed.   Connected
\nW.P.M.P.(MD)No.2554 of 2005 is closed.  No costs.\n<\/p>\n
asvm<\/p>\n
To\t\t\t\t\t\t<\/p>\n
The Presiding Officer,
\nLabour Court,
\nTirunelveli.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Management vs The Presiding Officer on 14 August, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-36882","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Management vs The Presiding Officer on 14 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-management-vs-the-presiding-officer-on-14-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Management vs The Presiding Officer on 14 August, 2009 - 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