IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.24542 of 2001 and W.P.No.10881 of 2002 The Management of St.Thomas Hospital and Leprosy Centre, Chettupattu – 606 801, Tiruvannamalai District. ... Petitioner in W.P.No.24542/2001 Jessy Joys ... Petitioner in W.P.No.10881/2002 Vs 1.Jessy Joys 2.The Presiding Officer, Labour Court, Vellore ... Respondents in W.P.No.24542/2001 1.The Management of St.Thomas Hospital and Leprosy Centre, Chettupattu – 606 801, Tiruvannamalai District. 2.The Presiding Officer, Labour Court, Vellore ...Respondents in W.P.No.10881/2002 W.P.No.24542/2001 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records pertaining to the Award dated 26.07.2001 passed by the second respondent in I.D.No.208 of 1996 and to quash the same. W.P.No.10881/2002 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records relating to the order of termination dated 03.04.1991 passed by the first respondent and the order dated 26.07.2001 passed in I.D.No.208 of 1996 on the file of the second respondent quash the same in so far as the same as against the petitioner and direct the first respondent to reinstate the petitioner in service with backwages. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners W.P.No.24542/2001 : Mr.Sanjay Mohan for M/s.Ramasubramanian Associates W.P.No.10881/2001 : No appearance For Respondents W.P.No.24542/2001 : No appearance for R1 W.P.No.10881/2001 : Mr.Sanjay Mohan for M/s.Ramasubramanian Associates for R1 C O M M O N O R D E R The first writ petition (W.P.No.24542/2001) was filed by the Management, challenging the Award dated 26.07.2001 passed by the Labour Court, Vellore in I.D.No.208 of 1996 granting reinstatement with service continuity but without backwages to the contesting respondent/workman. The writ petition was admitted on 14.12.2001 and notice was ordered to the contesting respondent. An order of interim stay was granted on the same day. 2. Subsequently, the workman took out an application for payment of monthly wages under Section 17-B of the I.D.Act. By an order dated 26.12.2002, the interim stay was made absolute on condition that the Management deposit the entire arrears of backwages within eight weeks and pay the last drawn wages in terms of Section 17-B of the Industrial Disputes Act. In default of these conditions, it was ordered that the stay shall stand vacated. 3. It is at this juncture, the Workman filed W.P.No.10881 of 2002, challenging the Award of the Labour Court, Vellore made in I.D.No.208 of 1996 dated 27.07.2001. By the impugned Award, the Labour Court set aside the punishment of dismissal given to the workman and directed her reinstatement with service continuity but without backwages. The said writ petition was admitted on 01.04.2002. 4. Heard the arguments of Mr.Sanjay Mohan appearing for M/s.Ramasubramanian Associates. The workman did not appear either in person or through his counsel. 5. The workman was employed in the laundry section of the hospital. She was given a charge memo dated 26.11.1990. The charge against the Workman was that on 20.11.1990, she dumped the wet clothes on the drying machine and as a result of which, water was splashed on the face of one Mohan, who was sitting nearby and taking his food. When the said Mohan reported the matter to the Head of the Laundry Section, the Workman got annoyed and threw her chappal on the said Mohan. At her instance, her husband G.Mariaselvam trespassed into the Hospital premises and both of them entered into the consultation room in the Leprosy Ward and in https://hcservices.ecourts.gov.in/hcservices/ the presence of the Medical Superintendent who was examining a leprosy patient she abused her in most vulgar language and assaulted her. At the instance of the staff members at the place, a further attack on the Medical Superintendent was thwarted. The petitioner and her husband also assaulted M/s.A.Infant Raj and R.D.G.Pandian with chappals and kicked Infant Raj, who came to the rescue of the Medical Superintendent. 6. The petitioner gave her explanation dated 30.11.1990. Her explanation was not satisfactory and an Advocate from outside was appointed as an Enquiry Officer. The Enquiry Officer held that the charges against the Workman were proved. A copy of the Enquiry Report was sent to the Workman along with the show cause notice as to why she should not be dismissed from service from the date of her suspension i.e. 21.11.1990. Though the workman claimed that she asked for the change of the Enquiry Officer on the ground he may not render justice and that the Enquiry Officer had asked her to sign blank papers, the Management did not believe those statements. Copies of deposition were furnished to the workman and she also cross-examined M.W.1 to M.W.8 in the enquiry. It was found that she was adopting dilatory tactics so that the enquiry may not be completed. She was given full opportunities. The Enquiry Officer held that the charges were proved and on that basis she was dismissed from service. 7. Thereafter, she raised an industrial dispute under Section 2A(2)of the Industrial Disputes Act before the Government Labour Officer. On the strength of the failure report given by the Conciliation Officer, she filed a claim statement before the Labour Court dated 01.09.1996. The Labour Court registered the dispute as I.D.No.208 of 1996. On notice from the Labour Court, the Management filed a counter statement dated 30.11.1996. In the counter affidavit, they had also pleaded that in the event of Labour Court deciding the Preliminary issue regarding the validity of the enquiry, they may be given an opportunity to lead fresh evidence to justify the charges. 8. Before the Labour court, on the side of the Workman, the judgment of the Criminal Appellate Court in C.C.No.29 of 1993 was marked as Ex.W1. On the side of the Management, 22 documents were filed and they were marked as Exs.M1 to M22. 9. The Labour Court framed the following three issues for consideration: i)whether the enquiry conduted against the workman was fair and proper? ii)whether the findings rendered by the Enquiry Officer holding that the charges were proved was correct? iii)Whether the workman was entitled for relief of backwages and service continuity and other attendant benefits together with reinstatement? https://hcservices.ecourts.gov.in/hcservices/ 10. In respect of the first issue, the Labour Court held that the enquiry was fair and proper. In respect of the second issue, the Labour Court held that the charges against the Workman were proved. In the criminal case, she was released on probation under Section 3 of the Probation of Offenders Act,l958. With reference to the relief, the Labour Court held that she did not beat the worker with prior planning and she had become emotionally surcharged. Therefore, there was a need to reduce the punishment. The Labour Court held that since she was not in employment for the last 10 years, she must be deprived of backwages which itself can be a sufficient punishment. Therefore, it ordered her re-instatement but without backwages. 11. Aggrieved by this Award, both sides have come up with the two writ petitions. 12. The learned counsel for the Management submitted that having found that the charges were proved and the enquiry was conducted in a fair and proper manner, it is not open to the Labour Court to order reinstatement especially when the proved charges were so severe. In this context, they relied upon a judgment of the Supreme Court in L&T Komatsu Ltd. v. N. Udayakumar reported in (2008) 1 SCC 224. In that case the Supreme Court had reviewed all the previous cases bearing on the subject and declined to grant any relief to the workman. Therefore, it will be useful to refer to the following passages found in paragraphs 10 and 11: "10. ...As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held: ‘Punishment of dismissal for using of abusive language cannot be held to be disproportionate.’ In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove.” 11. ...It may also be noticed that in Orissa Cement Ltd. v. Adikanda Sahu and in New Shorrock Mills v. Maheshbhai T. Rao this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated ‘punishment of dismissal for using abusive language cannot be held to be disproportionate’. If that be the position regarding verbal assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Muriadih Colliery of https://hcservices.ecourts.gov.in/hcservices/ Bharat Coking Coal Ltd. v. Bihar Colliery Kamgar Union this Court after referring to and quoting the relevant passages from Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh9 and Tournamulla Estate v. Workmen held: (SCC p.336, para 17) ‘The courts below by condoning an act of physical violence have undermined the discipline in the organisation, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under Section 11-A of the Act to interfere with the punishment of dismissal.’ ” (Emphasis added) 13. In the present case, the finding of the Labour Court that there was no prior planning or that it had happened due to the workman getting emotionally surcharged was not borne out by records. On the other hand, after the incident in the laundry section, the workman has brought her husband, who is an outsider and quarelled with the Superintendent. Even when persons tried to prevent were also assaulted. These findings recorded by the Enquiry Oficer was not disagreed by the Labour Court. In such circumstances for the proved misconduct an order of reinstatement though without backwages cannot be done in the exercise of power under Section 11- A of the I.D.Act. 14. In the light of the judgment of the Supreme Court referred to above, it is not a fit case where any relief can be given to the workman. Hence, W.P.No.24542 of 2001 stands allowed. W.P.No.10881 of 2002 stands dismissed. No costs. If any amounts were paid pursuant to interim order passed by this Court, the same shall not be recovered from the workman. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar svki To 1.The Presiding Officer, Labour Court, Vellore. https://hcservices.ecourts.gov.in/hcservices/ 2. The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr.S.Ramasubramaniam & Associates, Advocate, Sr.No.29333 order in W.P.No.24542 of 2001 and W.P.No.10881 of 2002 AKR {CO} TP/14.5.2010. https://hcservices.ecourts.gov.in/hcservices/