IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:21-9-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.24488 of 2006 W.P.No.36478 of 2005 & W.P.M.P.No.39268 of 2005 W.P.No.24488 of 2006 R. Ganesan ... Petitioner Vs. 1. Rane Luk Clutch (P) Ltd., Post Box No.20, Royakottah Road, Hosur – 631 109 2. The Presiding Officer, Labour Court, Salem. ... Respondents This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus, calling for the records of the second respondent in connection with the award pronounced in I.D.No.324 of 2002 pronounced on 5.4.2005 and quash the same insofar as the petitioner has been denied reinstatement with backwages, continuity of service and direct the first respondent to pay full backwages with continuity of service and all attendant benefits and award costs. W.P.No.36478 of 2005 The Management of Luk India Pvt. Ltd., (formerly known as Rane Luk Clutch Pvt Ltd., Royakottah Road, Hosur – 635 109. ... Petitioner Vs. 1. The Presiding Officer, Labour Court, Salem. 2. R. Ganesan ... Respondents This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorari, calling for the records of the first respondent in I.D.No.324/2004 and quash the award dated 5.4.2005 insofar it directs the petitioner to pay compensation of Rs.60,000/- to the second respondent. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in : Mr.V.Prakash, W.P.No.24488/2006 & Senior Counsel 2nd Respondent in for Mr.S.S.Vasudevan W.P.No.36478/2005 For 1st Respondent in : Mr.S.Ravindran W.P.No.24488/2006 & for M/s.T.S.Gopalan & Co. Petitioner in W.P.No.36478/2005 2nd Respondent in : Labour Court W.P.No.24488/2006 & 1st Respondent in W.P.No.36478/2005 COMMON ORDER For the sake of convenience the parties in this common order are referred to as 'Management' and 'Workman'. 2. Both the writ petitions came to be filed challenging the award of the Labour Court, Salem, made in I.D.No.324 of 2002 dated 5.4.2005. W.P.No.24488 of 2006 is filed by the Workman challenging the portion of the award refusing reinstatement, backwages and continuity of service to him, and W.P.No.36478 of 2005 is filed by the Management challenging the award ordering compensation of Rs.60,000/- apart from gratuity and other benefits to the Workman. 3. The brief facts necessary for the disposal of these writ petitions are as follows: (a) The Workman, after being discharged from CRPF, was appointed as Security Guard on 16.10.1996 in the Management and his service was confirmed on 16.4.1998. On 1.4.2000, he was transferred to production department and during his employment in production department, he was suspended for two days for misbehaving with the canteen worker. Again he was suspended for three days in the same year for less production. In the year 2001 also he was suspended for ten days by way of punishment for abusing the Assistant Store Manager. (b) According to the management, on 20.7.2001 the workman while doing his second shift (4.30 p.m. to 2.00 a.m) at about 7.15 p.m., misbehaved with one S.Ganesan, Executive (Administration) and assaulted him, who suffered bleeding injuries and the said Ganesan was taken to hospital for treatment. (c) On 21.7.2001 a charge memo-cum-suspension order was issued to the workman for the above misconduct. Two charges were framed and domestic enquiry was conducted and after examining witnesses, the https://hcservices.ecourts.gov.in/hcservices/ Enquiry Officer submitted his findings holding that the charges levelled against the workman were proved. (d) On 4.12.2001 a second show cause notice was issued along the findings of the Enquiry Officer's report and the workman submitted his explanation on 10.12.2001. The said explanation having not been found satisfactory, by order dated 14.12.2001 the workman was dismissed from service. (e) The workman challenged the said dismissal by raising I.D.No.324 of 2002 before the second respondent Labour Court as the conciliation efforts were failed and a failure report was filed on 9.5.2002 by the Labour Officer, Krishnagiri. A preliminary issue was raised regarding fairness in conducting enquiry. The said issue was decided against the workman and ultimately the final award was passed on 5.4.2005 holding that the workman cannot be ordered to be reinstated. However, a sum of Rs.60,000/- was ordered to be paid to the workman as compensation apart from gratuity and other benefits within three months, failing which the amount shall carry 6% interest. (f) Being aggrieved over the award ordering compensation, the management has filed W.P.No.36478 of 2005. Aggrieved over the preliminary finding as well as final award the workman has filed W.P.No.24488 of 2006 with the above said prayer. 4. The learned Senior Counsel for the Workman submitted that the workman denied the charges and an Enquiry Officer was appointed and to represent the management a Presenting Officer was also appointed. Since no employee working in the management was willing to assist the workman apprehending victimisation, the Enquiry Officer ought to have informed about the right of the workman to engage a person to assist the workman, at best a retired worker, however, the said choice was not informed to the workman. The prayer to engage a counsel was also denied quoting the standing order. The said fact was pointed out before the Labour Court by raising a preliminary issue to decide the fairness of the enquiry. However, the Labour Court without appreciating the said factual aspect and the prejudice caused to the workman overruled the objection and passed the impugned award by not ordering reinstatement, continuity of service and backwages. The learned Senior Counsel further submitted that the workman also gave complaint against the Officer, who also assaulted the workman. In spite of giving deposition to that effect, the same was not appreciated by the Enquiry Officer as well as the Labour Court. The learned Senior Counsel therefore submitted that the Enquiry having not been conducted in a fair and proper manner and without extending the assistance of a retired workman, the matter may be remitted to the Labour Court to lead evidence by the management as well as by the workman and time limit may be fixed for https://hcservices.ecourts.gov.in/hcservices/ passing fresh award. The learned Senior Counsel also cited several decisions in support of his submissions. 5. The learned counsel appearing for the Management submitted that the charges framed against the petitioner being commission of serious misconduct and the workman having participated in the enquiry, even though his request to engage a counsel was declined as per the standing order, no prejudice was caused to him merely because a Presenting Officer was permitted to present the case of the management. The learned counsel also submitted that the preliminary finding given by the Labour Court having not been challenged immediately and the Labour Court having given its final verdict, the workman cannot agitate the finding regarding preliminary issue at this stage. The workman having lost the confidence of the management cannot be reinstated and the grave misconduct having been proved, he is not entitled to get compensation and other benefits as ordered by the Labour Court. Hence the order of the Labour Court has to be confirmed insofar as the denial of reinstatement, backwages and continuity of service, the award of the Labour Court is to be confirmed. 6. I have considered the rival submissions of the learned Senior counsel for the Workman as well as the learned counsel for the Management. 7. The charges framed against the workman reads as follows: "On 20.7.2001, you were employed in the second shift commencing from 4.30 PM to 2 AM. It has been reported that at 7.05 PM, you have come to the Time Office of the factory and asked for Form 105 under ESIC Act to Mr.S.Ganesan, Executive -Admin, who was present in Time Office. Since Mr.S.Ganesan, was pre-occupied with attending outside phone calls at that time, he has requested you to come at the dinner time between 8.00 &.8.30 PM and you went away. After that again at about 7.15 PM you have come to the window in between Time Office and Security Office and asked Mr.S.Ganesan to permit you to make a phone call from there. Mr.S.Ganesan has told you that as per the Management's instruction, nobody should be allowed to make any phone calls from there. On hearing this, you have tried to lift the receiver forcibly. At that time Mr.S.Ganesan has tried to prevent you from making a call. Immediately, you have thrown the telephone receiver on him. On seeing this commotion outside the Time Office near the window https://hcservices.ecourts.gov.in/hcservices/ where the Telephone was kept the security guards Mr.T.Karki, Mr.D.Rabba and Mr.Rahul Khaklary who were in the next room namely security office and main gate rushed to the time office. In the meanwhile an Act apprentice Mr.V.S.Madhumurthy who did not find you at your work spot has also come in search of your. On seeing you near the time office window, creating problems, he also came to the spot, to know what was happening. At that time Mr.S.Ganesan came out from the time office through the door, adjacent to the window where the phone was kept. As soon as he came out of the time office, you shouted at him asking why he has not allowed you to make a phone call and you have hit him on his left eye with your hand as a result of which, his spectacle broke and he has sustained bleeding injury on his left eye brow, below the left eye and left side of his nose. At the time of this assault the security guards Mr.T.Karki, Mr.D.Rabba and Mr.Rahul Khaklary and Act apprentice Mr.V.S.Madhumoorthy were present. Immediately you left from the spot. After that Mr.S.Ganesan was rushed to the Govt.Hospital and admitted as inpatient. Hence the unruly act of yours, and assaulting the superior officer is a grave misconduct under clause No.17(a), 17(k), 17(u), 17(ah) and 17(ag) of the certified standing order of the company." From the perusal of the above charges it is evident that the workman was refused to be permitted by the Executive (Administration) to make a phone call from the Time Office and immediately he allegedly thrown the telephone receiver on the Executive (Administration) and also shouted at the Officer as to why he was not allowed to make a phone call and hit the Officer on his left eye with his hand, as a result of which his spectacle broke and the said person namely S.Ganesan sustained bleeding injury on his left eyebrow. According to the management, the said incident was seen by the Security Guards viz., T.Karki, D.Rabba, Rahul Khaklary and one apprentice viz., V.S.Madhumoorthy. According to the management the said assault committed by the workman was proved during the enquiry and the said misconducts are coming under Clause No.17(a),(k),(u),(ah),(ag) of the Certified Standing Orders of the Company. 8. It is the specific case of the workman that no employee of the management was willing to assist him during the domestic enquiry even though the management was represented by a Presenting Officer. https://hcservices.ecourts.gov.in/hcservices/ His request to engage a counsel to plead his case was negatived citing the provision in the Standing Order. In the preliminary issue raised before the Labour Court, the workman has stated that due process of law as contemplated under the Industrial Disputes Act, 1947 was not followed during the enquiry and therefore the enquiry was improper. In the counter affidavit filed by the management it is stated that the workman was given permission to bring his co-worker for his assistance in the enquiry, but he has not availed the said opportunity. The management also prayed for permission to adduce evidence before the Labour Court, if it is found that the enquiry was fair and proper. 9. The workman is not well-versed in English language is evident from Ex.M-9 and therefore he may not be aware of the technical intricacies involved in the case to defend his case. The denial of opportunity to cross examine PW-1, who gave the complaint against the petitioner is raised as an objection by the workman in his reply to the final show cause notice. His denial of assistance of a competent person was also emphasised in the reply which is marked as Ex.M-22. The said aspects are not considered by the Disciplinary Authority in the order of dismissal marked as Ex.M-23. 10. In Ex.M-8 it is stated that the workman was also attacked and he also gave a complaint before the Police. Thus, there are two versions about the incident dated 21.7.2001. Therefore the Enquiry Officer has to find out the truth by giving fair and reasonable opportunities to the workman and the management. The workman also sought for giving document in Tamil. Exs.M-1 to M-7, the documents marked against the workman, are in English and Tamil version of the said documents are not furnished to the workman. The said issue, even though was raised before the Labour Court, was not appreciated by the Labour Court while deciding the preliminary issue. The preliminary issue having been challenged in the writ petition filed by the workman, I am of the view that the objection raised regarding fairness of the enquiry has to be sustained and the subsequent final award passed by the Labour Court is to be set aside and the matter has to be remitted to the Labour Court to adduce evidence to prove the charges levelled against the workman by the management. The workman can effectively defend his case before the Labour Court with the assistance of his Counsel. 11. As no co-worker was willing to assist the workman apprehending victimisation to comply with the principles of natural justice and to maintain the fair play in action, the management/Enquiry Officer is bound to inform the workman about his right to engage a person of his choice, other than a counsel. If the Enquiry Officer informed the said right and the workman refused to engage any person to represent him, then the workman cannot contend that fair play in action and principles of natural justice are violated. It is the specific case of the workman that no other https://hcservices.ecourts.gov.in/hcservices/ employee was willing to assist him on the threat of victimisation. The said stand of the workman is stated in Ex.M-12 dated 8.8.2001. In the above circumstances the Enquiry Officer should have informed the workman that he has got a right of getting assistance from a retired person. The said right is not informed to the petitioner to comply with the principles of natural justice, particularly when the management is represented by a Presenting Officer. 12. I am aware that normally departmental proceedings are to be conducted only on the basis of Standing Orders. However, if in a given case no one is coming forward to assist him on the threat of victimisation, nothing wrong in giving assistance of a retired employee or a stranger, though not an advocate. The decision of the Supreme Court reported in AIR 1960 SC 914 (N.Kalindi v. Tata Locomotive & Engineering Co. Ltd.) provides such an obligation to the management. In the said decision the Supreme Court held thus, "......... it is necessary to remember that if any enquiry is not otherwise fair, the workman concerned can challenge its validity in an industrial dispute. Our conclusion, therefore, is that a workman against whom an enquiry is being held by the management has no right to be represented at such enquiry a representative of his Union; though of course an employer in his discretion can and may allow his employee to avail himself of such assistance." The above view was followed by the Supreme Court in its subsequent decision reported in (1999) 1 SCC 626 (Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union)(para 30). The management having not visualised the situation as arisen in this case, did not provide for such a right to a workman in the Standing Order, is not an answer to deny the effective participation of the workman in the departmental enquiry. 13. The preliminary issue decided can be agitated after the final award is passed by the Labour Court as held by the Supreme Court in the decision reported in AIR 1975 SC 1900 : (1975) 2 SCC 661 (Cooper Engineering Ltd. v. P.P.Mundhe). In para 22 the Supreme Court held thus, "22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in https://hcservices.ecourts.gov.in/hcservices/ controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication." The workman's conduct in not filing earlier writ petition to challenge the preliminary finding cannot be put against him as it is left open to the parties to challenge the said findings even after the final award is passed. 14. As regards the award of compensation is concerned, the allegation levelled against the workman are serious misconducts and if it is properly proved by observing the principles of natural justice and fairness in procedure, the Workman is not entitled to get reinstatement or any compensation. However, the matter being remitted to the Labour Court now, it is not necessary to go further into the issue regarding the merits of the rival contentions. By setting aside the decision on the preliminary issue and the consequential remand of the matter the management is also benefitted as the award of the Labour Court ordering compensation to the workman is also set aside. Hence the preliminary finding given by the Labour Court as well as the final award made in I.D.No.324 of 2002 are set aside and I.D.No.324 of 2002 is remitted back to the file of the Labour Court with a direction to permit the management as well as workman to lead evidence in support of their respective contentions and the Labour Court is directed to pass final award afresh within a period of six months from the date of receipt of copy of this order. The writ petitions are partly allowed with the above directions. No costs. Connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vr To The Presiding Officer, Labour Court, Salem. 1 cc To Mr.K.Sudalaikannu, Advocate, SR.69666 W.P.No.24488 of 2006 & 36478 of 2005 GG(CO) sra 28/09/2010 https://hcservices.ecourts.gov.in/hcservices/