IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 6.03.2009 CORAM: THE HONOURABLE MR. JUSTICE K. CHANDRU Writ Petition No.6295 of 2000 The Management of Tata Tea Ltd. owning Pannimade Estate Pannimade P.O.,Tamil Nadu 642 131 rep.by its Manager Mr.Rahul Madura .. Petitioner Vs. 1. The Presiding Officer Labour Court ,Coimbatore 2. S.Kumaresan .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorari to call for the records leading to the Award in I.D.No.358 of 1996 dated 10.8.1999 and quash the same. For Petitioner : M/s.Ramasubramaniam Associates For 2nd Respondent : Mr.Ajay Ghose O R D E R The petitioner is the management. Aggrieved by the award passed by the first respondent Labour Court made in I.D.No.358 of 1996 dated 10.8.1999, the present Writ Petition has been filed. 2. By the impugned award, the Labour Court set aside the dismissal of the second respondent and directed his reinstatement with backwages and other service benefits. 3. The Writ Petition was admitted on 7.4.2000 and an interim stay was granted with a condition that the petitioner management deposits 50% of the backwages and also complies with monthly payments under section 17-B of the Industrial Dispute Act provided the second respondent files an affidavit that he was not gainfully employed anywhere. 4. Thereafter the second respondent filed a vacate stay application. When that came up for hearing, this Court by an order https://hcservices.ecourts.gov.in/hcservices/ dated 17.112000 made the stay absolute and further directed the second respondent to withdraw the sum of Rs.42,500/-, which was deposited to the credit of I.D. A further direction was also given to deposit another sum of Rs.30,000/- to the credit of of I.D, which was to be invested in a nationalised bank initially for a period of five years with further direction for periodical renewal until the disposal of the Writ Petition. This Court also directed the petitioner to pay Rs.20,000/- per month commencing from April 2000 till the disposal of the Writ Petition. 5. The second respondent was appointed as an Assistant Field Officer by the petitioner with effect from 16.10.1992. It was stated that he was charge sheeted on 14.6.1995. The allegation against the second respondent was that he had misbehaved with a temporary woman plantation worker and offended her modesty by using bad language. When she gave a complaint against the said officer to the management, he approached another co-worker by name Krishnan and used pressure tactics to make her to withdraw the complaint. An enquiry was conducted against the second respondent and based upon the enquiry officer's report, he was dismissed from service with effect from 6.11.1995. 6. Thereafter, he raised an industrial dispute before the Government Labour Officer. Since the said officer could not bring about mediation, he gave his failure report. On the strength of the failure report, he filed a claim petition before the first respondent Labour Court. On notice from the Labour Court, the petitioner management filed a counter statement dated 'nil' (September 1997). They also raised an issue that since the second respondent was employed in a supervisory capacity and was drawing more than Rs.1600/- per month, he was not a "workman" within the meaning of Section 2(s) of the Industrial Dispute Act. 7. Before the Labour Court, the second respondent examined himself as W.W.1 and one George Phineora as W.W.2. He was a field Officer in the same estate. He was also the Chairman of the Staff Union. On behalf of the management, one Rahul, who was the Manager of the Estate was examined as M.W.1. Before the Labour Court, the second respondent filed 7 documents and they were marked as Exs.W.1 to W.7. On the side of the petitioner management, 37 documents were filed and they were marked as Exs.M.1 to M.37. 8. The Labour Court, after extracting the relevant portion of the evidence, found that the supervisory work of the second respondent was only an incidental and his work was mainly of manual and clerical. Therefore, the objection raised by the petitioner management regarding the status of the second respondent was overruled. 9. On the merits of the case, the Labour Court found that the https://hcservices.ecourts.gov.in/hcservices/ Assistant Manager, Field Officer, Supervisor and another worker, who were examined in the domestic enquiry were not eye witnesses to the incident set out in the complaint. The first witness was the one, who conducted the preliminary enquiry in the absence of the second respondent. So far as the statement of Krishnan was concerned, the Labour Court doubted his complaint given in Ex.M.19. It was also stated by the Labour Court that the two women plantation workers, namely Rajathi and Kalyani stated that they were not aware of the complaint in Ex.M.7. So far as Kalyani (mother of the victim Rajathi) is concerned, she had stated that she was not present in the spot and she had not heard the actual words uttered by the second respondent. 10. In paragraph 9 of the award the Labour Court observed as follows: "It is in the evidence of Rajathy that she was called by the petitioner and she was told by him not to cover her body with her saree and on hearing him, she started crying and when her mother saw her crying and enquired her, she told her about the same. Though her in chief examination, it is stated by her that the indecent words are spoken by the petitioner once to her it is in her cross-examination that the petitioner has spoken so twice and it is also further admitted by her that after the incident she went for the weighing work and only after the weighing work is over, she was seen crying by her mother and when she was asked by her mother, she informed her mother about the same." 11. The Labour Court held that the management's action in not considering the rebuttal evidence let in by the second respondent was not proper and hence in the enquiry conducted by the petitioner, there was no legal evidence. 12. The original record relating to the industrial dispute was summoned from the Labour Court and it was circulated for the perusal by this Court. 13. The victim Rajathi, who was a woman plantation worker in her chief examination has clearly spoke about the act of the sexual harassment made by the second respondent. She also mentioned the attempts made by the second respondent to make her to withdraw the complaint. In cross-examination, she gave clear answers which are as follows. The statement, which was made in Tamil, if translated in to English, reads as follows: "He has called me, who made you to wear the gunny sack in this fashion. I said, "Maistry". First time he said, "do not cover the chest with saree". When I asked him, how he can speak like that, he once again said, "do not close https://hcservices.ecourts.gov.in/hcservices/ your chest with saree and reiterated the same. He said this standing very close to me." 14. She only said that she did not remember having given a complaint. It must be stated that the incident had taken place on 29.4.1995 and her evidence was recorded during July 1995. The evidence nowhere shows that she had denied having given any complaint. Similarly the second witness Kalyani, mother of the victim also spoke about the incident, though not as an eye witness. When these evidence were appreciated by the domestic enquiry officer, the domestic enquiry officer believed the evidence of the two women workers who were daughter and mother. It is not as if the authority, who conducted the preliminary enquiry should be an eye witness. On the contrary, any management is bound to enquire into the accusation of sexual harassment by the superior or the management staff without fail. 15. The Labour Court was wrong in disagreeing with the findings of the domestic enquiry officer, when it is not found to be either perverse or supported by evidence. The findings of the Labour Court that the second respondent may be a 'workman' within the meaning of Section 2(s) of the Industrial Dispute Act, does not call for interference. But, insofar as the observation made by the petitioner that some portion of the evidence was hearsay and hence unacceptable, cannot be accepted. 16. The Supreme Court while its judgment in State of Hariyana vs. Rattan Singh reported in 1982 (1) LLJ 46 held as follows: "It is well settled that in a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. 17. It has been consistently held by the Supreme Court in a domestic enquiry the misconduct need not be proved beyond all reasonable doubt, but if there are preponderance of probabilities, that is enough for holding a person guilty of misconduct. 18. It is unfortunate that the Labour Court had not kept in mind the decision of the Supreme Court in Visshaka and others v. State of Rajasthan and others reported in AIR 1997 SC 3011. The Supreme Court in paragraph 16 held as follows: "16. In view of the above and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual https://hcservices.ecourts.gov.in/hcservices/ harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Art.32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Art.141 of the Constitution. 19. The Supreme Court has also held that as to what amount to a 'sexual harassment' and also the duty of the employer to prevent such sexual harassment of women in work places was set out in the guidelines in paragraphs 1 and 2 and in paragraph 3, the preventive steps to be taken by the employer have been given, they read as follows: "1. Duty of the employer or other responsible persons in work place and other institutions: It shall be the duty of the employer or other responsible persons in work places or institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. 2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: a) physical contact and advances b) a demand or request for sexual favours; c) sexually coloured remarks; d) showing pornography; e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. 3. Preventive steps: All employers or persons in charge of work placed whether in the public or private sector should take appropriate steps to prevent sexual harassment." 20. In the present case, the complaint made against the second respondent was a clear case of sexual harassment at the work place, given by a workman against her superior and the petitioner management has rightly taken appropriate action. When the complainant herself came forward to give evidence and whose evidence could not be https://hcservices.ecourts.gov.in/hcservices/ impeached in cross-examination, which was supported by other witnesses, who came to know about the incident as well as the management's preliminary enquiry can be a sufficient evidence to hold the second respondent guilty of misconduct. Instead of dealing with the matter as enjoined by the Supreme Court, the Labour Court had gone on a tangent and had come to a wrong conclusion in its award. 21. In the light of the above, the impugned award deserves to be set aside and the Writ Petition has to be allowed. Accordingly the Writ Petition stands allowed. However, there will be no order as to costs. 22. By virtue of the interim order, the second respondent was in receipt of monthly payments in terms of Section 17-B of the Industrial Dispute Act. Since the Supreme Court has held that it is only in the nature of subsistence allowance, the same cannot be recovered. But on the other hand, in view of the award being set aside, it is open to the petitioner management to withdraw the amounts lying in deposit with the Labour Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To The Presiding Officer Labour Court Coimbatore W.P.No.6295 of 2000 PUR(CO) PMK(9/03/2009) https://hcservices.ecourts.gov.in/hcservices/