IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.3.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Writ Appeals No.838 of 2000 and 335 of 2001 W.A.No.838 of 2000: The Management of Tamil Nadu Newsprint and Paper Mills, Kagithapuram, Pugalur-639117. ... Appellant/2nd respondent in WP.247/91 on the file of this court. Vs. 1.The Workmen of Tamil Nadu Newsprint and Paper Mills, rep.by the Secretary, Tamil Nadu Newsprint and Paper Mills Thozhilalar Sangam, Kaghithapuram, Pugalur, Tiruchy District. 2.The Principal Labour Court, Madurai ... Respondents (Petitioners and first respondent in-do) W.A.No.335 of 2001: The Workmen of Tamil Nadu Newsprint and Paper Mills, Pugalur, rep.by the Secretary, Tamil Nadu Newsprint and Paper Mills Thozhilalar Sangam, Kagithapuram, Pugalur, Trichy District ... Appellant Vs. 1.The Principal Labour Court, Madurai. 2.The Management of Tamil Nadu Newsprint and Paper Mills, Kagithapuram, Pugalur-639117. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ * * * Writ Appeals filed under Clause 15 of the Letters Patent both against the order of the learned single Judge of this Court dated 17.2.2000 made in W.P.No.247 of 1991. Petition presented to this court under Article 226 of the constitution of India to issue a writ of certiorarified Mandamus and after calling for the concerned records relations to I.D.84/1987 on the file of the first respondent Principal Labour Court, Madurai quash his award dated 9.4.90 in I.D.84/1987 published in Tamil Nadu Government Gazette part 2 section 2 supplement dated 22.8.90 (Exhibit A) and consequently issue a Mandamus directing the first respondent to reinstate the worker V. Subramanian in service writ backwages, continuity of service and all other attendent benefits. * * * For appellant in : Mr.Sanjay Mohan for W.A.No.838/2000, who : M/s.S.Ramasubramaniam is R2 in WA.335/2001 : and Associates For appellant in W.A.No.335/2001, who : Mr.N.G.R.Prasad for is R.1 in WA.838/2000 : M/s.Row & Reddy * * * COMMON JUDGMENT ELIPE DHARMA RAO, J. Both these appeals are challenging the order passed by the learned single Judge of this Court in W.P.No.247 of 1991, dated 17.2.2000, while Writ Appeal No.838 of 2000 has been filed by the Management, Writ Appeal No.335 of 2001 is filed by the Workmen Association. 2. One V.Subramanian was employed as an Equipment Operator in the Management. On the allegation that he had assaulted one R.Kalyanasundaram, server in the TNPL Staff Mess, on 8.12.1984 at about 8.00 a.m. and based on the complaint of the said R.Kalyanasundaram, a charge memo. was issued to the said V.Subramanian. Thereupon, having not satisfied with the explanation submitted by the delinquent Officer Mr.V.Subramanian, the Management has conducted enquiry, by appointing a retired District Judge as the Enquiry Officer. Before the Enquiry Officer, the Management has examined four witnesses as M.Ws.1 to 4 and on behalf of the workman, three witnesses were examined as W.Ws.1 to 3. Further, on behalf of the Management, four documents were marked as Exs.M.1 to M.4, but no documentary evidence was adduced on behalf of the workman. The Enquiry Officer, found the delinquent guilty of the charge, following which the Management has imposed a punishment of dismissal from service. Aggrieved, an Industrial Dispute was raised by the workers Association before the Labour Court and since the Labour Court also found the delinquent guilty of the charges and dismissed the https://hcservices.ecourts.gov.in/hcservices/ industrial dispute, Writ Petition No.247 of 1991 was filed by the Workmen Association. 3. The learned single Judge, by the order dated 17.2.2000, has observed that the Labour Court has not addressed itself to all the questions and that the matter should be decided by the Labour Court as to whether the assault on Kalyanasundaram by the delinquent would attract clause 16(t) of the Model Standing Orders and whether the canteen can be regarded as a part of the establishment of the Management and whether Kalayanasundaram can be regarded as a workman of the Management and what are the relevant provisions of the Standing Orders that would be applicable to cover the alleged misconduct of the delinquent and that the Management in the order of termination has not specified whether they have taken into account the previous record of the workman and what was the nature of the previous record and whether there are any extenuating or aggravating circumstances present, before passing the order of termination. On such grounds, the learned Judge, while setting aside the Award of the Labour Court, has remitted the matter back to the Labour Court to consider the question as to whether the order of termination is justifiable or can be sustained. This order of the learned single is under challenge by both the Management and the Workers Union, by way of these writ appeals. 4. On the part of the workers Union, it is stated that the learned single Judge having found that as per the order of the Labour Court, the delinquent employee had merely abused and not assaulted, as alleged, during wordy quarrel with one of the servers in the canteen, ought to have held that the punishment is excessive and that there was no pleading by the Management that the alleged assault/abuse was in connection with the employment of the establishment and that the very fact that the Management had invoked Standing Order 16(t) and in the absence of any plea by the Management that the incident took place in connection with the employment, the learned Judge ought to have granted the relief as prayed for and in any case, the learned Judge ought to have held that it is a fit case for a lesser punishment under Section 11-A of the I.D.Act and should have directed reinstatement. 5. On the part of the Management, they would submit that the learned Judge failed to realise that the canteen that was run by the Management was as a result of a statutory requirement pressed upon the Management under Section 46 of the Factories Act and therefore, the canteen premises would be part of premises belonging to the employer, where services were provided by the contractor for the exclusive use of employees of the Management and therefore, abuse done in the said canteen premises, which is part of the factory of the employer, irrespective of who is abused and why he was assaulted or abused would still be a misconduct which would be actionable under the provisions of the Standing Orders; that the Enquiry Officer dealt totally on the aspect of assault and abuse and concluded that indeed an assault and https://hcservices.ecourts.gov.in/hcservices/ abuse of a contractor employee took place in the statutorily required canteen; that the learned Judge ought to have seen that the Labour Court concluded that the employee had put in just three years of service and who had a past record for similar misbehaviour could be inflicted with the punishment of dismissal for abuse, because it happened in the statutory canteen premises and therefore, the learned Judge erred in sending the matter back again to find out whether the charge of assault had been made out. 6. As could be seen from the materials placed on record, it is seen that a charge memo. was issued to the delinquent officer V.Subramanian alleging that he had assaulted one R.Kalyanasundaram, server in the TNPL Staff Mess, on 8.12.1984 at about 8.00 a.m. The Management has pressed into service Rule 16(t) of the Tamil Nadu Industrial Employment (Standing Orders) Rules, 1947, in support of their action of issuing the said charge memo. to the delinquent officer. The said Rule 16(t) reads as follows: "16. Acts and omissions constituting misconduct: - The following acts and omissions shall be treated as misconduct: (a) to (s) ... (t): threatening, abusing, intimidating or assaulting any workman outside the premises of the establishment, if such threat, abuse, intimidation or assault is in connection with the employment in the establishment" (emphasis supplied) 7. Thus, to construe misconduct under this Rule, the fundamental rule must be that the victim must be a workman of the same Management and the threat, abuse, intimidation or assault should take place outside the premises of the establishment, if the same is in connection with the employment in the establishment. Therefore, the basic rule that needs to be satisfied by the Management to proceeded against any workman is that the victim is also their workman, within the meaning of the provisions of the Industrial Disputes Act. Therefore, to decide the entire issue on hand, we are called upon to examine this point, before proceeding to deal with other aspects of the case. 8. True, the Management is under a statutory obligation in terms of Section 46 of the Factories Act and the Rules made thereunder to maintain a canteen for its workers. But, that does not mean that the employees of the canteen must be the employees of the Management. In the case on hand, the specific case of the workers is that the canteen is not being run by the Management and the employees of the canteen are not the workmen of the Management and therefore, the standing order 16 (t) has no application to the facts of the case. 9. To unearth the true, we have gone through the entire materials placed on record and from Para No.6 of the counter statement filed by the Management before the Labour Court and from Para No.9 of the counter statement filed by the Management before the learned single Judge, we are able to see that the firm stand of the Management is that 'thiru R.Kalayanasundaram, canteen server, was engaged in the factory https://hcservices.ecourts.gov.in/hcservices/ mess/canteen provided by the Management to be used only by workmen and staff of the Management ... and that the Mess and its premises belonged to the factory/Management and thereby the day-to-day running was done by the employees and the Management also gave additional facilities such as building, power, fuel etc. to this canteen and it is actually in the precincts of the factory, the canteen in question is one which the second respondent Management is statutorily bound to maintain in terms of the Factories Act and it is open only to the employees of the respondent Management and not to the outsiders and therefore, automatically, the canteen and its running is in connection with employment of the Management and hence any assault done there would be in connection with the employment by the Management.' 10. A whole reading of these two counters filed by the Management, does not reveal that the workers of the canteen are the workers of the Management. These are cleverly drafted counter affidavits, evading reply to the specific allegation made by the workers Union that the workers of the canteen are not the workers of the Management. Further more, from ground No.(2) of the grounds of appeal preferred by the Management in W.A.No.838 of 2000, it is seen that services are provided by a Contractor in the canteen for the exclusive use of employees of the appellant. Therefore, it is clear that the Management is leasing out the running of the canteen to private contractors and the workers working in the said canteen are not the workers of the Management. In the absence of any assertion by the respondent/management that in addition to providing infrastructure, to run the mess and canteen, they are running the canteen and these workmen in the canteen are appointed by the Management, we cannot hold that the workers of the canteen are the workmen of the Management. 11. In HARI SHANKAR SHARMA vs. ARTIFICIAL LIMBS MANUFACTURING CORPORATION [(2002) 1 SCC 337], rebutting the similar stand of the Management, the Honourable Apex Court has held as follows: "The submission of the appellants that because the canteen had been set up pursuant to a statutory obligation under Section 46 of the Factories Act, therefore, the employees in the canteen were the employees of Respondent 1, is unacceptable. First, Respondent 1 has disputed that Section 46 of the Factories Act at all applies to it. Indeed, the High Court has noted that this was never the case of the appellants either before the Labour Court or the High Court. Second, assuming that Section 46 of the Factories Act was applicable to Respondent 1, it cannot be said as an absolute proposition of law that whenever in discharge of a statutory mandate, a canteen is set up or other facility is provided by an establishment, the employees of the canteen or such other facility become the employees of that establishment. It would depend on how the obligation is discharged by the establishment. It may be carried out wholly or substantially by the establishment itself or the burden may https://hcservices.ecourts.gov.in/hcservices/ be delegated to an independent contractor. There is nothing in Section 46 of the Factories Act, nor has any provision of any other statute been pointed out to us by the appellants, which provides for the mode in which the specified establishment must set up a canteen. Where it is left to the discretion of the establishment concerned to discharge its obligation of setting up a canteen either by way of direct recruitment or by employment of a contractor, it cannot be postulated that in the latter event, the persons working in the canteen would be the employees of the establishment. Therefore, even assuming that Respondent 1 is a specified industry within the meaning of Section 46 of the Factories Act, 1948, this by itself would not lead to the inevitable conclusion that the employees in the canteen are the employees of Respondent 1." 12. The Honourable Supreme Court in STATE OF KARNATAKA AND OTHERS vs. KGSD CANTEEN EMPLOYEES' WELFARE ASSOCIATION [(2006) 1 SCC 567], after discussing earlier decisions of the Supreme Court, including the above judgment, has observed in paragraph No.32 as follows: "We have referred to the aforementioned decisions in order to show that in each of the aforementioned cases the industrial adjudicator was required to apply the relevant tests laid down by this Court in the fact situation obtaining therein. Most of the cases referred to hereinbefore were considered by this Court in the peculiar facts and circumstances obtaining therein and, thus, it is even not proper for the industrial adjudicator to apply the ratio of one decision to the exclusion of other without considering the facts and circumstances involved therein. The law, however, does not appear to be settled as to whether even in a case where the employer is required to run and maintain a canteen in terms of the provisions of the statute, the employees of the canteen would automatically be held to be the workers of the principal employer for all intent and purport and not for the purpose of the Factories Act alone. We, however, are not concerned with the said question in this matter and refrain ourselves from making any observation in respect thereof." It is, however, cautioned that: "Most of the cases of Supreme Court having been considered in the facts and circumstances obtaining therein, it would not be proper for industrial adjudicator to apply ratio of one decision to the exclusion of another, without considering the facts and circumstances involved therein." 13. Therefore, from the above judgments of the Honourable Apex Court it is clear that though there is an obligation on the part of the Management to run a canteen, the employees of the canteen would not automatically be held to be the workers of the principal employer for all intent and purport and not for the purpose of the Factories Act https://hcservices.ecourts.gov.in/hcservices/ alone and each case has to be decided on its own facts and circumstances. Therefore, now, we shall examine the materials available on record to find out as to whether the alleged victim of the canteen is a 'workman' of the Management. 14. In the case on hand, as has already been pointed out supra, as against the strong assertion made by the workers Union that the canteen worker is not the workman of the Management, the Management has not asserted anything, in positive terms, that the said canteen worker is their workman. Further more, except saying that they have provided infrastructure to the canteen, nowhere, the Management has stated that the canteen worker is their worker and no details of date of appointment of the said worker in the canteen, his scale of pay etc. are furnished. 15. In catena of cases, we have seen that whenever a canteen worker seeks for regularisation of his post, the Managements deny such claim of the canteen worker on the ground that canteen workers are not their workers, like the one before the Honourable Supreme Court in the above cited judgment [(2006) 1 SCC 567]. But, in the case on hand the contention of the Management is other way round, to suit their convenience, saying that the canteen worker is their worker, without giving any details of his appointment. Moreover, from the grounds of appeal also it is clear that the canteen is being run by a private contractor. When the canteen is being run by a private contractor, it is common knowledge of any prudent man that the contractor would bring in his own men to maintain the canteen, lest, he has to face hurdles from the workers day in and day out. At the cost of repetition, we reiterate that there was no clear assertion from the Management as to how the canteen workers are their workmen, for all purposes and from the materials placed on record we could observe that this strange plea has been taken by the Management, without substantiated by any material, with the sole aim of sacking the delinquent/workman and this chameleon attitude of the Management cannot be appreciated. Therefore, at no stretch of imagination, it could be said that the canteen worker, who is alleged to have been assaulted by the delinquent officer, is the workman of the Management. When there is no pleading on the part of the Management that the said canteen worker is their worker and when the materials on record speak volumes that the said canteen worker is not the workman of the Management, we have no hesitation to hold that the said canteen worker is not a 'workman' of the Management and the remand ordered by the learned single Judge, to find out the said fact, is unnecessary. 16. As has been observed supra, to attract the misconduct under Standing Order 16(t), the victim must be a 'workman' of the Management. When the Management has failed to prove that the alleged victim was their 'workman', the very root of their case leading to framing charges against the delinquent officer, is cut. 17. In view of the availability of abundant material on record to show that the alleged victim is not at all a 'workman' of the Management and in view of pendency of the matter for quite a long time i.e. from https://hcservices.ecourts.gov.in/hcservices/ the year 1986 onwards, we do not see any justification in the remand ordered by the learned single Judge. 18. When the very basis for the Management to frame a charge against the delinquent officer is cut from its roots, in view of our finding that the alleged victim is not at all a workman of the Management, which is mandatory to satisfy the provisions of Standing Order 16(t), the entire proceedings initiated against the delinquent are vitiated and therefore, the plea of the Workers Union needs to be upheld. In view of our above finding, we need not have to traverse into the other aspects of the case, since the very base of the charge against the delinquent officer is unfounded. In the result, W.A.No.838 of 2000 filed by the Management fails and the same is dismissed and W.A.No.335 of 2001 filed by the Workers Union is allowed. The Management is directed to reinstate the delinquent officer with continuity of service and all other attendant benefits within twelve weeks from the date of receipt of a copy of this judgment. But, however, taking into consideration the long severance of employer- employee relationship, we order only 50% backwages to the delinquent employee. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Rao To The Principal Labour Court, Madurai 1 cc to M/s.Row & Reddy, Advocate SR.12295 KG (CO) W.A.Nos.838/2000 & 335/2001 MMP 12.3.08 https://hcservices.ecourts.gov.in/hcservices/ https://hcservices.ecourts.gov.in/hcservices/