IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.14275 of 2001 R.Venkatesan .. Petitioner Vs. 1.The Presiding Officer, Labour Court, Vellore. 2.The Managing Director, Tamil Nadu State Transport Corporation, Formerly Pattukkottai Azhagiri Transport Corporation, Rangapuram, Vellore-9. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to I.D.No.29 of 1996 on the file of the Labour Court, Vellore and to quash the Award dated 27.11.2000 made in ID 29 of 1996 by the Presiding Officer, Labour Court, Vellore. For Petitioner : Mr.C.R.Krishnamoorthy For Respondents : Ms.Rajeswari for M/s.King & Partridge for R2 - - - - ORDER The petitioner has come forward to challenge the award of the first respondent Labour Court made in ID No.29 of 1996, dated 27.11.2000. By the impugned Award, the labour court refused to grant any relief to the petitioner. The writ petition was admitted on 8.8.2001. Pending the writ petition, in an application for direction for payment of backwages, this court initially ordered notice. Subsequently, the same was dismissed on 5.9.2003. 2.The case of the petitioner was that he was working as a Driver in the respondent Corporation, which was earlier known as Pattukkottai Azhagiri Transport Corporation, Vellore. He was also an activist in the trade union in which he was a member. A charge memo, dated 29.10.1992 was given to the petitioner. He submitted his explanation. A domestic enquiry was conducted. Though it was claimed https://hcservices.ecourts.gov.in/hcservices/ that the charges were not proved, he was punished and his annual increments were postponed for three years. He submitted his representations to the higher officials and drew their attention regarding the injustice meted out to him. Ever since he made the complaint to the Chief Minister's grievance cell, another charge memo was given to him on 10.6.1993. 3.In the charge memo signed by the General Manager, it was stated that the petitioner had distributed hand bills from 27.5.1993 onwards announcing that he will go on an indefinite hunger fast at the Muttukadai junction, Ranipet. He distributed the same to the public, thereby bringing disrepute to the corporation's good name. He also gave a press release which was published in the "Daily Thanthi" on 29.5.1993 threatening that in the event of not cancelling the proposed punishment, he will jump from the top of the Collector's office and commit suicide. To that effect, he gave a petition to the District Collector. He was arrested by the police and a criminal case was filed against him. Even on that account, he brought disrepute to the name of the corporation. Therefore, the petitioner was charged for distributing handbills for going on hunger fast till his death and that he gave a petition to the District Collector that he will jump from the top of Collector's office to commit suicide. This news item had appeared in the "Daily Thanthi" newspaper. In the charge memo, they had referred to the specific misconducts enumerated in the certified Standing Orders as 24.30, 24.36 and 24.43 applicable to the corporation. 4.The petitioner gave his explanation, dated 16.6.1993. Thereafter, a domestic enquiry was conducted against him. In the enquiry proceedings, the Enquiry Officer found him guilty of charges. Thereafter, a provisional conclusion was arrived at and was communicated to the petitioner on 3.1.1995 proposing to impose a penalty. The petitioner gave his representation denying the charges. The petitioner had stated that only documents ere relied on by the petitioner and he was not allowed to cross examine the witnesses. The police had registered a case under Section 309 IPC (attempt to commit suicide). On further enquiry, the police had closed the case. Therefore, he contended that there was no legal evidence against the petitioner. Notwithstanding the same, by an order, dated 10.3.1995, he was terminated from service. 5.The petitioner raised an industrial dispute before the Government Labour Officer, Vellore. As he could not bring about any mediation, the conciliation resulted in a failure report being drawn up dated 27.12.1995. On the strength of the failure report, the petitioner filed a claim statement before the Labour Court. The said claim statement was taken on file by the first respondent as I.D.No.29 of 1996. Notice was issued to the erstwhile Pattukkottai Azhagiri Transport Corporation Ltd. (PATC Ltd.). They had filed a counter statement, dated 30.3.1996. 6.In the counter statement, it was stated that the petitioner had sent a complaint to the Chief Minister's grievance cell and he had also published a hand bill. The allegation that the https://hcservices.ecourts.gov.in/hcservices/ police closed the investigation was also not true. It was alleged that he created panic in the office of the District Collector at Vellore by threatening to commit suicide by falling from the top floor. That news item had appeared in a newspaper. He also threatened to go on an hunger fast and issued a bit notice for the same. The petitioner had also committed several previous misconducts. Taking note of all the previous misconducts, he was terminated from service after conducting a full-fledged enquiry. 7.Along with the industrial dispute, which was pending, the petitioner also claimed bonus due and payable by the respondent corporation for the year 1994-95 which was not paid to him. He filed an application under Section 33-C(2) of the Industrial Disputes Act before the very same labour court. It was taken on file as C.P.No.282 of 1996. In that claim statement, the second respondent corporation contended that the petitioner was statutorily disqualified from receiving the bonus. The second respondent claimed that the petitioner is ineligible to claim gratuity if he was found guilty of a misconduct causing financial loss to the employer and therefore, the amount of bonus payable was withheld. 8.In the claim petition, the petitioner examined himself as P.W.1. On the side of the second respondent management, one V.V.Udayasankar was examined as R.W.1. The alleged bit notice distributed by the petitioner dated 6.11.2000 was marked as the Court Exhibit C.1. The labour court dealt with the claim petition separately and by its order, dated 6.11.2000, computed the amount in favour of the petitioner. While deciding the issue in favour of the petitioner, the labour court after appreciating the evidence of the management's witness R.W.1, held that the petitioner was regular and punctual in his work. His performance was above board. There was not at all misconduct. In Ex.C.1, there was nothing to indicate that it was printed in the name of the petitioner and at the instance of the petitioner. Merely because printer's name was not found, it can held to be a minor offence. From the deposition of R.W.1 the fate of the case registered against the petitioner could not be known. Hence it was held that the charge against the petitioner was totally baseless. The labour court also found that the defence taken as per Section 18 of the Payment of Bonus Act was not acceptable. In that view of the matter, the labour court directed the payment of bonus to the petitioner together with cost of Rs.500/-. 9.In the meanwhile, in the industrial dispute, seven documents were filed by the second respondent and marked as Exs.M.1 to M.7. The order of the labour court in the claim petition, dated 6.11.2000 was also produced on 27.11.2000 when the industrial dispute was being argued. The labour court after referring its own order, in paragraph 7 held though it was between the same parties, the jurisdiction under Section 33-C(2) was different from its jurisdiction in a industrial dispute and that the appreciation of evidence was also different. Merely because there was a direction to pay bonus notwithstanding the denial of the workmen's right under Section 18, the same will have no bearing on the dispute. It is a startling provision made by the Labour court. When parties and https://hcservices.ecourts.gov.in/hcservices/ nature of allegations are same, it is unthinkable as to how the labour court can hold that the findings rendered in the claim petition has no bearing on the industrial dispute, which was argued before him. The labour court went at tangent and held that the petitioner had printed the handbill and despatched it to the Chief Minister, Transport Minister and other officials. His defence that he merely scared the Dubehdar of the District Collector about his attempting to commit suicide was held to be not correct. Thereafter, referring to his past misconduct, the labour court held that considering the earlier incident, dated 19.10.1992 when he drove a vehicle without carrying passengers, the corporation had sustained loss and therefore the punishment of dismissal was not harsh or excessive. 10.It is unthinkable that in a petition under Section 33-C (2), the labour court rejected the defence pleaded by the corporation as per Section 18 of Payment of Bonus Act by withholding the bonus due to loss caused to the corporation during the account year, but yet the same labour court by its perfunctory order found the petitioner guilty and denied the relief on the basis of the so- called loss. 11.The points for consideration is whether the two charges levelled against the petitioner, i.e. printing of hand bill and attempting to go on hunger fast till his death, would amount to misconduct? and when allegedly he threatened to jump from the District Collectorate office to commit suicide followed by the police registering a case, whether the management can take any action? 12.It must be noted that the petitioner is an industrial worker covered by the provisions of the Industrial Disputes Act, 1947, Industrial Employment (Standing Orders) Act, 1946 as well as the Trade Union Act, 1926. As an activist of a trade union, he is entitled to highlight his grievance to the higher authorities, for which no exception can be taken. The Industrial Disputes Act gives the right to strike to the workmen covered by the ID Act. Going on strike is also one of the mode of recognised form of expression. In fact, strike itself has to be seen as a form of demonstration guaranteed by Article 19(1)(c) of the Constitution. 13.The Supreme Court in B.R. Singh v. Union of India reported in (1989) 4 SCC 710, in paragraph 15 observed as follows: "15. Counsel for TFAI also strongly contended that since the strike was illegal, the workers are not entitled to any relief. We see no merit in this submission. The right to form associations or unions is a fundamental right under Article 19(l)(c) of the Constitution. Section 8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognised https://hcservices.ecourts.gov.in/hcservices/ obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively with the managements. This bargaining power would be considerably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit-in, work-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it. These are to be found in Sections 10(3), 10-A(4-A), 22 and 23 of the Industrial Disputes Act, 1947 (“ID Act” for short). Section 10(3) empowers the appropriate government to prohibit the continuance of a strike if it is in connection with a dispute referred to one of the fora created under the said statute. Section 10-A(4-A) confers similar power on the appropriate government where the industrial dispute which is the cause of the strike is referred to arbitration and a notification in that behalf is issued under Section 10-A(3-A). These two provisions have no application to the present case since it is nobody’s contention that the Union’s demands have been referred to any forum under the statute." (Emphasis added) 14.The Standing Orders quoted by the respondent Corporation in the charge memo has no relevance to the case on hand. The Supreme Court in a case of government servant and dealing with the Karnataka Government Servants Conduct Rules, i.e. Rule 22 struck a balance between the right of government servant and the constitutional protection given to him, vide its judgment in M.H. Devendrappa v. Karnataka State Small Industries Development Corpn., reported in (1998) 3 SCC 732. It must be noted that it was a case of government servant and not an industrial worker. In paragraph 16 and 17, the Supreme Court observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "16......Of course, the courts will be vigilant to see that the code is not so widely framed as to unreasonably restrict fundamental freedoms. ...." 17. .... This does not mean that legitimate action discreetly and properly taken by a government servant with a sense of responsibility and at the proper level to remedy any malfunction in the organisation would also be barred. However, such is not the case here. Also, a person who legitimately seeks to exercise his rights under Article 19 cannot be told that you are free to exercise the rights, but the consequences will be so serious and so damaging, that you will not, in effect, be able to exercise your freedoms. For example, a person may be told that you are free to express your opinion against the State, but if you do so, you will be put behind bars. This is clearly deprivation of freedom of speech....." 15.Even in the case relating to T.K. Rangarajan v. Govt. of T.N., reported in (2003) 6 SCC 581, the Supreme Court dealing with Rule 22A of the Tamil Nadu Government Servants Conduct Rules, 1973, which prohibits even conducting meetings and hunger strike, in paragraph 19 observed as follows: "19....Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare State, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances....." 16.Such observation can have little bearing on the right of the industrial workers, whose rights are guaranteed by the labour enactments referred to above. Therefore, printing of a handbill is concerned, even assuming that the petitioner was instrumental in printing the same and sending it to the authorities, it can hardly be said to be a misconduct. In fact, the findings in this regard made by the labour court in its order, dated 6.11.2000 in C.P.No.282 of 1996 (between the same parties and which has become final), was diametrically opposite to the findings rendered in the main industrial dispute. With reference to the second charge, even assuming that the petitioner had threatened to commit suicide attracting an offence under Section 309 IPC, it must be noted that the police were investigating the case. The respondent was not able to state about the outcome of the criminal case. The petitioner had asserted that the police had closed the file. In any event, at the time of dismissal, i.e. on 10.3.1995, the ruling of the Supreme court in P. Rathinam v. Union of India and another, (1994) 3 SCC 394 was the prevailing law. In that decision, the Supreme Court held that Section 309 was unconstitutional. Though subsequently, in Gian Kaur v. State of Punjab, (1996) 2 SCC 648, a constitution bench https://hcservices.ecourts.gov.in/hcservices/ reversed that judgment but it was 21.3.1996. Thus, it can be presumed that at the relevant date, the police could not have proceeded with the criminal investigation. Therefore, it is possible, as contended by the petitioner, that the case was closed as a MF case. 17.If it is seen in the above context, then the labour court did not appreciate the legal issues in accordance with law. On the contrary, the labour court went at a tangent and in perfunctory manner decided the case against the petitioner. It simply brushed aside its own order, that too by the very same Presiding officer just three weeks before the impugned Award came to be passed. Therefore, the impugned Award is liable to be interfered with. 18.It is now brought to the notice of the court that the petitioner at the time of filing of the writ petition was 56 years old. In the normal course, he would have reached the age of superannuation during the year 2003 itself. Therefore, the question of grant of any reinstatement of the petitioner does not arise though he was eligible to get such relief. 19.In the light of the subsequent developments, this court directs that the petitioner is entitled for full wages from the date of his dismissal, i.e. from 10.3.1995 to the date of his retirement. He must be paid all terminal benefits including gratuity, PF, pension as if he had retired from service on reaching the age of his superannuation. The writ petition will stand allowed and the impugned Award stands modified. The second respondent Corporation is directed to implement this order within eight weeks from the date of receipt of copy of this order. No costs. vvk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Presiding Officer, Labour Court, Vellore. 2.The Managing Director, Tamil Nadu State Transport Corporation, Formerly Pattukkottai Azhagiri Transport Corporation, Rangapuram, Vellore-9. + 1 cc to M/s.King & Partridge, Advocate SR No.22511 + 1 cc to M/s.C.R.Krishnamurthy, Advocate SR No.22377 AKR(CO) SR/12.4.2010 ORDER IN W.P.NO.14275 of 2001 https://hcservices.ecourts.gov.in/hcservices/