IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 09..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 6196, 6197 and 8149 of 1998 W.P. No. 6196 of 1998:- The Management of Madras Motors Ltd. Singampunari Sivagangai District .. Petitioner vs. 1. The Presiding Officer Labour Court Madruai 2. S. Marudupandian 3. S. Gunasekaran .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent in I.D. No. 531 of 1989 and 533 of 1989 and quash the Award dated 18.8.1997. W.P. No. 6197 of 1998:- The Management of Madras Motors Ltd. Singampunari Sivagangai District .. Petitioner vs. 1. The Presiding Officer Labour Court Madruai 2. S. Gunasekaran .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent in I.D. No. 533 of 1989 and quash the Award dated 09.7.1993. https://hcservices.ecourts.gov.in/hcservices/ W.P. No. 8149 of 1998:- The Management of Madras Motors Ltd. Singampunari Sivagangai District .. Petitioner vs. 1. The Presiding Officer Labour Court Madruai 2. S. Marudupandian .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent in I.D. No. 531 of 1989 and quash the Award dated 09.7.1993. For Management : Mr. Karthik M/s T.S. Gopalan & Co. For Workmen : Mr. Balan Haridass (Amicus Curiae) C O M M O N O R D E R Heard the arguments of Mr. Karthik, learned counsel representing M/s T.S. Gopalan & Co. and appearing for the Management and Mr. Balan Haridass, learned counsel appointed as Amicus Curiae for the unrepresented workmen and perused the records filed by the parties as well as the original records summoned from the first respondent Labour Court. 2. W.P. No. 6196 of 1998 is filed by the Management against the common Award dated 18.8.1997 made in I.D. No. 531 of 1989 (S. Marudupandian) and I.D. No. 533 of 1989 (S. Gunasekaran). In I.D. No. 531 of 1989, the Labour Court directed reinstatement of workman Marudupandian with continuity of service and backwages. In I.D. No. 533 of 1989, in respect of workman S. Gunasekaran, he was given the relief of compensation of a sum of Rs.40,000/- in lieu of reinstatement. 3. W.P. No. 6197 of 1998 is filed by the Management against the preliminary order dated 09.7.1993 made in I.D. No. 533 of 1989 wherein the enquiry conducted by the Management was found to be vitiated and opposed to the principles of natural justice. 4. W.P. No. 8149 of 1998 was directed against the preliminary order dated 09.7.1993 made in I.D. No. 531 of 1989 in which the Labour Court held that the enquiry held against the workman Marudupandian, https://hcservices.ecourts.gov.in/hcservices/ was vitiated. The Management at that time itself filed a writ petition being W.P. No. 2735 of 1994 challenging the said order and this Court dismissed the writ petition by an order dated 25.02.1994 holding that such challenge without the trial being completed, was not maintainable. 5. An interim stay was granted by this Court on 29.4.1998 against the enforcement of the Award and since the workmen were not represented, the stay was also made absolute on 20.12.2002. 6. Even after the matters were listed for final hearing as the workers were not represented by counsel, Mr. Balan Haridass, learned counsel was appointed as Amicus Curiae vide order of this Court dated 17.4.2008. He had readily agreed to represent the case of the workmen. This Court places on record the valuable assistance supported by legal precedents rendered by the Amicus Curiae. 7. Before the Labour Court, a counter statement was filed by the petitioner Management and in paragraph 15, the Management sought for liberty to adduce fresh evidence in case the Court comes to the conclusion that the enquiry was vitiated. The Labour Court, by its order dated 09.7.1993, came to the conclusion that the enquiry was vitiated. Thereafter, before the Labour Court, the two industrial disputes were tried together and on the side of the workmen, Marudupandian was examined as W.W.1 and on the side of the Management, 5 witnesses were examined as M.W. 1 to M.W. 5. While 13 documents were filed on the side of the workmen and marked as Exs. W.1 to W.13, on the side of the Management, 36 documents were filed and they were marked as Exs. M.1 to M.36. 8. The Labour Court, on an analysis of the evidence (both oral and documentary), came to the conclusion that the charges were not established. It held that the complaint Ex. M.2 was given by one Chandramouli against the workmen and he was not examined. Even though it was claimed that the said Chandramouli had resigned, the Court held that he could have been summoned through Court summons. Therefore, the Labour Court held that the Charge No. 4 was not proved. Likewise, in Ex. M.3, the date of incident had not been mentioned and no statements were obtained from the lorry agent Subramanian and he was also not examined before the Court and, therefore, it rejected the basis of Ex. M.3. It also held that though for the charge under Ex. M.8, the basic document was Ex. M.1, the complainants M/s Pandiyarajan and Jayachandran were not examined before the Court. It, therefore, held that the said charge was also not proved. 9. With reference to the fourth charge, the basic report was Ex. M.10 signed by one Ramasamy, the then General Manager was also not examined and hence, the said charge was held not proved. In the light of the same, since no satisfactory evidence was let in before the Labour Court, it held that the charges have not been proved and it granted relief as noted elsewhere. In respect of the workman S. Gunasekaran, compensation was directed to be paid because it was https://hcservices.ecourts.gov.in/hcservices/ alleged by the Management that he already got employed in some outstation. However, the said Gunasekaran had not filed any writ petition. Therefore, to that extent, the said relief cannot be interfered with. 10. Having found that the Labour Court had gone into evidence placed before it and appreciated the same and rendered a finding of fact, this Court under Article 226 of the Constitution of India, cannot review the same. Therefore, Mr. Karthik, learned counsel for the Management concentrated his attack more on the preliminary order dated 09.7.1983 challenged in W.P. Nos. 6197 and 8149 of 1998. 11. Mr. Balan Haridass, learned Amicus Curiae submitted that non-examination of the complainants is material and, therefore, there cannot be any fault on the part of the labour Court in coming to the conclusion which it had reached. In this context, he referred to the judgment of the Division Bench of this Court in B. Padmaiah v. The Union of India and others [2007 Writ L.R. 7] and more particularly, referred to the passage found in paragraph 21, which reads as follows:- ".... The failure to examine the complainant whose complaint is the basis for the disciplinary action against the petitioner and the failure to provide an opportunity to the petitioner to test the veracity of the complaint made against him has resulted in the deprivation of right of the petitioner amounting to gross violation of principles of natural justice and thereby, making the entire disciplinary proceedings vitiated...." 12. On the question of discrimination shown by the Management because it had reinstated several workmen, who were also accused of similar charges, the learned counsel relied upon the judgment of the Supreme Court in Sengara Singh v. State of Punjab [(1983) 4 SCC 225] and referred to paragraph 9 which is as follows: Para 9: "What then should be done? The appellants have been accused of participating in a procession taken out by the members of the Police Force for ventilating their grievances about their service conditions. May be that still having not reached the stage of tolerance for formation of associations amongst police personnel, the demonstrators may be looked upon with disfavour. But approaching the matter from this angle, all the 1100 dismissed members of the Police Force were guilty of same misconduct namely indiscipline to the same extent and degree as the present appellants. Now if the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them, they could be reinstated, we see no justification in treating the present appellants differently without pointing out how they were guilty of more serious https://hcservices.ecourts.gov.in/hcservices/ misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. Respondents failed to explain to the Court the distinguishing features and therefore, we are satisfied in putting all of them in same bracket. On that conclusion the treatment meted to the present appellants suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution. The Court must accordingly interpose and quash the discriminatory action." 13. The learned counsel also relied upon the judgment of this Court in Workmen of India Cements Ltd., Salem v. Labour Court, Coimbatore and others [1988 (II) L.L.N. 755], which was also confirmed by a Division Bench of this Court vide its decision in India Cements Ltd., Sankari West v. Labour Court, Coimbatore and others [1989 (II) L.L.N. 319] for the very same proposition. 14. However, Mr. Karthik, learned counsel appearing for the Management relied upon the judgment of the Supreme Court in Workmen v. Bharat Fritz Werner (P) Ltd. [(1990) 3 SCC 565] and more particularly, relied upon the passage found in paragraph 21 and submitted that even if the charges are not proved, this is not a fit case where any reinstatement and compensation can be ordered. Para 22: "The misconduct that has been found established against these five workmen involves threatening the highest executive, viz. the President of Company, with dire consequences, wrongfully confining him in his room and compelling him to withdraw the notice. These acts of misconduct involve acts subversive of discipline on the part of these workmen. Three of these workmen were office bearers of the Union. It cannot be said that these workmen had acted at the instigation of somebody. Taking into consideration the facts and the circumstances of the case, we are of the opinion that, keeping in view the interests of the industry, this is a case where it can be said that it is not desirable and expedient to direct reinstatement of these workmen. In our view, therefore, the direction with regard to reinstatement of these workmen cannot be sustained and in lieu of reinstatement they may be paid compensation for loss of future employment." 15. The material question with reference to the preliminary issue is whether the Labour Court was entitled to hold that the enquiry was vitiated on the ground that there is no proper service of notice of enquiry on the workmen. The original documents produced before this Court clearly show that the notices were not sent to the workmen to their respective address given at the time of joining in the factory but to their Union office at Singampunari. As it was not functioning at that time, the letters were redirected to their https://hcservices.ecourts.gov.in/hcservices/ trade Union headquarters office at Madurai. In that office, the letters were not received by any one and it came back unserved. A similar attempt was repeated in all communications sent by the Management. It cannot be taken as sufficient notice for the workmen to participate in the enquiry. It is only in a newspaper advertisement in 'Dhinathanthi' dated 27.8.1987, a public notice was given regarding the enquiry. 16. Mr. Karthik, learned counsel for the Management, pointed out that there was a reference in their claim statement that they were present in the factory at the time of enquiry and, therefore, it was not open to them to contend otherwise. But that averment was denied in the counter statement filed by the Management. Even otherwise, unless and until the workmen are served in the manner known to law, the Management's action after sending notices to wrong addresses and when they were not served, publishing it in the newspaper, cannot be taken to be a sufficient service. 17. In this context, it is necessary to point out the relevant Standing orders found in the Certified Standing Orders of the Management (marked as Ex. M.25). Standing Order 20 reads as follows:- "20. Notice: 1) Any matter required to be notified under these standing orders and any notice by the employer to the workman in the industrial establishment shall be displayed on notice boards maintained for the purpose at conspicuous place in the premises of the industrial establishment. 2) Any notice or communication intended for any workman personally may be delivered to him personally in the premises of the industrial establishment or sent to him by post to the address of the workman as specified in the service records as or otherwise furnished by him. 3) Any matter required to be notified under these Standing Orders and any notice or communication by the employer to the workmen in the industrial establishment shall be in Tamil. Provided that if the majority of the workmen in the industrial establishment know English or any other regional language and express a desire to receive communications in that language, the communication may be sent to the workman in that language." [emphasis added] In the present case, number of notices were in English and on that ground also, the enquiry can be held to be invalid. 18. As seen from the above, under Standing Order 20(2), notice will have to be served only to the address of the workmen as specified in the Service Record. The Management's contention that they had https://hcservices.ecourts.gov.in/hcservices/ sent notice as required under the Service Rules cannot be accepted. The Supreme Court in its judgment in Union of India v. Dinanath Shantaram Karekar [(1998) 7 SCC 569] observed in paragraph 10 as follows: Para 10: "Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of “communication” cannot be invoked and “actual service” must be proved and established. It has already been found that neither the charge-sheet nor the show-cause notice were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated." 19. This Court by its order in W.P. No. 36779 of 2006, disposed on 04.9.2007 [A. Anandan v. The Chairman, food Corporation of India] (rendered by me) dealt with similar question arose out of the FCI Staff Regulations. There, it was held that mere publication, without exhausting the other modes of service, is not sufficient service. Paragraph 12 of the order reads thus: Para 12: "Regulation 75(iii) clearly states that if any employee for whom notice is sent by registered post returned unserved, it should be published in the local / regional language newspaper and in addition to that, an All India Newspaper as appropriate and upon such publication only, it can be deemed to have been personally served on such employee. Nowhere the respondent FCI had complied with the Regulation 75(iii) of the Regulations. The only option open to the FCI is to publish either in the local or in the regional language newspaper and All India Newspaper and it does not talk about publication in any English newspaper, which is neither the local nor regional language. Therefore, the fault is on the FCI taking advantage of the deemed service provided under Regulation 75(iii) of the Regulations. The basis on which the show cause notice was issued and the removal order do not exist, as admittedly, the publication was done only in English newspaper." 20. The said matter was taken on appeal before the Division Bench of this Court in W.A. No. 1420 of 2007 [chairman, Food Corporation of India v. A. Anandan] and the Division Bench, headed by Chief Justice A.P. Shah, vide judgment dated 06.3.2008, dismissed the Writ Appeal. Speaking for the Bench, Chief Justice A.P. Shah (as https://hcservices.ecourts.gov.in/hcservices/ he then was) in paragraph 8 observed as follows:- Para 8: "Regulation 75(iii) clearly states that if any employee for whom notice is sent by registered post returned unserved, it should be published in the local/regional language newspaper and in addition to that, an all India newspaper as appropriate and upon such publication only, it will be deemed to have been personally served on such employee. Admittedly, the FCI had not complied with Regulation 75(iii) of the Regulations. Under clause (iii) of Regulation 75, only option open to the FCI is to publish either in the local or in the regional language newspaper and also an all India newspaper. However, there was no publication in the local/regional language newspaper. A submission was made on behalf of the appellants/FCI that the word "appropriate" suggests that the FCI has an option to publish it in the local/regional language newspaper or in an all India newspaper and publication in an appropriate all India newspaper should be regarded as substantial compliance with Regulation 75(iii). It was contended that if the word "and" is read as "or", it cannot be said that there was non compliance of Regulation 75(iii). The argument stated is only to be rejected. On a plain reading of Clause (iii) of Regulation 75 it is seen that the requirement of publication in the local/regional language is mandatory and a notice shall be deemed to have been personally served on the employee only upon such publication." 21. Once the Management's case regarding the preliminary order goes, then there is very little for them to contend against the main Award of the Labour Court. The Labour Court had dealt with the evidence tendered before it threadbare and no fault can be found to it. 22. In the light of the above, the writ petitions deserve to be dismissed. Accordingly, they stand dismissed. However, there will be no order as to costs. The Management is directed to comply with the Award impugned in W.P. No. 6196 of 1998 within a period of four weeks from the date of receipt of a copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer Labour Court Madruai 1 CC To Mr.T.S.Gopalan, Advocate, SR NO.27585 1 CC To Mr.Balan Haridass(Amicus Curiae), Advocate, SR NO.27634 Delivery Order in W.P. No. 6196 of 1998, etc. batch CK(CO) rvr 16/06/08 https://hcservices.ecourts.gov.in/hcservices/