IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :-04.02.2011 Coram The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A.No.1881 of 2010 M.P.No.1 of 2010 A.Kajendran ... Appellant/Petitioner vs. 1.The presiding Officer, Central Govt. Industrial Tribunal, Cum Labour Court, Shastri Bhawan, Haddows Road, Chennai – 600006. 2.The General Manager Heavy Vehicles Factory, Avadi, Chennai - 600054 ... Respondents/Respondents PRAYER : Writ appeal filed under clause 15 of the letters patent against the order dated 10.08.2010 passed in W.P.No.25171 of 2003, presented under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records from the files of the 1st respondent in I.D.No.81 of 2000 and quash its impugned award dated 02.04.2003 in so far as the 1st Respondent has negatived the claim of the petitioner for reinstatement in service, with continuity of service, with backwages and with all other attendant and consequential benefits. For Appellant :Mr.N.G.R.Prasad for Mr.K.M.Ramesh For Respondents :Mr.R.Sureshkumar SCGSC for R2 J U D G M E N T THE HON'BLE THE CHIEF JUSTICE & T.S.SIVAGNANAM, J. This appeal is directed against the Judgment and order dated 10.08.2010 made in W.P.No.25171 of 2003, in and by which the learned Single Judge remanded the matter to the Central Government Industrial Tribunal for fresh adjudication on two questions framed by the learned Single Judge. https://hcservices.ecourts.gov.in/hcservices/ 2. The facts which are necessary for disposal of the appeal could be briefly set out as hereunder. The appellant raised an industrial dispute before the first respondent in I.D.No.81 of 2002, challenging the order passed by the second respondent, removing the appellant from service. Earlier the second respondent had issued a charge memorandum dated 13.06.1997, alleging that the appellant while functioning as a Civil Motor Driver (CMD) in the Heavy Vehicles Factory at Avadi assaulted one Mr.S.Ambikapathy as an ex-employee, inside the factory and that his conduct is unbecoming of a Government servant as per rule 3(1)(iii) of the CCS (Conduct) Rules 1964. 3. It appears that a domestic enquiry was conducted and the enquiry officer concluded that the charge against the appellant is proved and accordingly submitted his findings. The copy of the enquiry report was furnished to the appellant to enable him to submit his representation and the appellant submitted his representation and requested that he may be exonerated from the charge. The disciplinary authority by order dated 18.07.1998, agreed with the findings of the enquiry officer and removed the appellant from service. 4. The correctness of the order of removal was assailed before the Central Government Industrial Tribunal raising various grounds. The second respondent resisted the claim petition by filing a reply statement inter alia raising a preliminary objection stating that the Tribunal has no jurisdiction to adjudicate the dispute, since the appellant was a staff of the second respondent organisation, which is a Central Government organisation under the Ministry of Defence exercising sovereign functions and the appellant has to approach the Central Administrative Tribunal. The second respondent resisted the claim petition also on merits. Both parties marked documents by consent. The second respondent filed a memo giving up the domestic enquiry conducted against the appellant and sought permission to lead evidence before the Tribunal to prove the charge leveled against the appellant. Accordingly, the Tribunal permitted both parties to lead evidence. The appellant examined himself as WW-1 and the management examined eight witnesses as MW-1 to MW-8. MW-1 is one Ambikapathy, who is stated to have been assaulted by the appellant. During the course of cross examination, MW-1 (Ambikapathy) denied the contents of the complaint that he was assaulted and stated that it was not written in his own hand writing and he has not mentioned the antecedents of the appellant and he was not called for the domestic enquiry by the management and that he was not assaulted and no incident like any quarrel involving physical force had taken place. The other witnesses on the side of management also deposed and all the witnesses have either denied having seen the incident of assault said to have been committed by the appellant on the said Ambikapathy or they have stated that there was wordy quarrel between the two and https://hcservices.ecourts.gov.in/hcservices/ they separated them. The Tribunal took note of the deposition of the management witnesses, more particularly that of MW-1 and recorded a finding that even if MW-1 has retracted his earlier complaint, if such a incident had not taken place in the factory premises, there would have been no necessity for Ambikapathy to prefer a complaint and therefore concluded that the appellant had assaulted the ex- employee and confirmed the order of dismissal passed against the appellant. 5. Being aggrieved by the award of the Tribunal, the appellant approached this Court by way of the aforementioned writ petition. The learned Single Judge, who heard the writ petition held that the Tribunal did not frame an issue as regards its jurisdiction to deal with the industrial dispute and that the Tribunal did not frame an issue as regards the compromise, which stated to have been arrived at by letter dated 06.05.1998 of MW-1 given to the second respondent and whether the second respondent is an industry as defined under Section 2(j) of the Industrial Dispute Act. Thus, the learned Single Judge remanded the matter to the Tribunal for fresh consideration on the above three issues. Aggrieved by such order, the appellant has filed the present appeal. 6. Mr.N.G.R.Prasad, learned counsel appearing for the appellant would submit that the learned Judge suomoto took up point of jurisdiction of the Tribunal and that the second respondent though had raised the jurisdiction point in their reply statement did not press for framing such an issue as a preliminary issue and no material was placed before the Tribunal to substantiate the said plea. Therefore in the absence of any evidence, the Tribunal was not required to adjudicate on the said issue regarding jurisdiction. Further, learned counsel would submit that the second respondent is an industry and the jurisdiction of the Industrial Tribunal cannot be ousted. In support of the said contention, the learned counsel placed reliance on the decision of the Supreme Court in Nirchiliya and Ors. vs.Management of Safire Theatre and another, (1991) 1 LLJ 111(SC), and the decision of the High Court of Madhya Pradesh in Sushil Kumar vs. I.T.B. Police Force and Anr., 1994 II LLJ 264 and the decision of the Calcutta High Court in Union of India vs. Central Govt. Industrial Tribunal and others, 1986 LAB. I.C. 1269. The learned counsel further submitted that the learned Judge relied on Act 36 of 1956, which is not applicable to the facts of this case, since the said enactment was an amendment to Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956 and has no application to the facts of the present case. 7. Mr.R.Sureshkumar, learned Senior Panel Counsel appearing for the second respondent would submit that the question of jurisdiction of the Tribunal was raised before the Tribunal and therefore, the learned Single Judge was perfectly right in directing the Tribunal to decide the question and rule on its jurisdiction. Further, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel would submit that the order of removal from service was passed against the appellant after following procedure under the Conduct Rules and only remedy available to the appellant is to approach the Central Administrative Tribunal and the Industrial Tribunal had no jurisdiction to entertain the claim petition. Further, the learned counsel would submit that there is ample evidence to establish that the incident took place, where the appellant assaulted an ex-employee within the factory premises and the fact that a compromise has been subsequently arrived at itself will prove such incident had taken place and therefore, the second respondent was fully justified in initiating disciplinary action and passing the order of removal from service. Further, the learned counsel would submit that the conduct of the appellant is far from being satisfactory as the appellant has suffered several punishments in his tenure of service. 8. We have considered the submissions on either side and perused the materials available on record. 9. It appears that the second respondent raised a preliminary objection in their reply statement before the Industrial Tribunal questioning the jurisdiction of the Tribunal to adjudicate the dispute. However, there is no material on record to show that such issue was canvassed before the Tribunal and whether the second respondent insisted the Tribunal to frame such an issue. It further appears that the second respondent effectively and fully participated in the adjudication before the Tribunal and contested the matter on merits. Therefore, at this stage, it may not be open to the second respondent to raise the issue at such belated stage. 10. Yet, taking note of the fact that the matter concerns as jurisdictional point, we propose to examine the same. 11. It is not in dispute that the second respondent is an organisation of the Central Government under the Ministry of Defence and its employees are covered under the Central Civil Service Conduct Rules. It is also submitted that there are no standing orders for the employees of the second respondent organisation. The Industrial Disputes Act (hereinafter referred to as the “Act”) was enacted with the object to ensure social Justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the parties. It is a piece of legislation providing for regulating the service conditions of the workers and the object being to improve the service conditions and to bring about industrial peace, which will accelerate production resulting in prosperity for the Country (see AIR 1999 SC 1351:(1999) 6 SCC 82 Ajaib Singh vs. Sirhind Co-op. Mktg.-cum- Processing Service Society Ltd). https://hcservices.ecourts.gov.in/hcservices/ 12. Section 2(j) of the Act defines 'industry' to mean any business, trade, undertaking, manufacture or calling of employers includes any calling service, employment, handicraft or industrial occupation or avocation of workmen. Thus, the language of the definition clause is very widely couched and in our view should be interpreted in a manner so as to advance the object of the Act and not to whittle down the same. Therefore, a broader and liberal approach is to be adopted while interpreting the definition of 'industry' as defined under Section 2(j) of the Act. Admittedly, the employees of the second respondent organisation, which comes under the Ministry of Defence are not governed by the provision of Army Act, but they are dealt with only other Civilian Servants. In such circumstances, the fair and reasonable interpretation to be given to the term "workmen" as defined under Section 2(s) of the Act is not to exclude employees such of those who are working in the second respondent establishment/factory. As, they are not covered in any one of the clauses (i) to (iv) of Section 2(s) of the Act. 13. In General Manager, Telecom vs. A.Srinivasa Rao and others, (1997) 8 SCC 767, the point which arose for consideration is whether the Telecom department of Union of India is an industry within the meaning of definition industry in Section 2(j) of the ID Act. Their Lordship's observed that the amendment made to the definition in the year 1982 had not been brought into force by the Central Government by issuance of notification and therefore, it may not be necessary to consider, whether Telecom department of the Union of India would be an 'industry' within the meaning of amended provision, which was not yet brought into force. Their Lordship's were concerned with the earlier definition of 'industry', which was subject matter of consideration of seven-Judge Bench of the Hon'ble Supreme Court in Bangalore Water Supply and Sewerage Board vs. A.Rajappa, (1978) 2 SCC 213. By applying the "dominant nature test" evolved in the Bangalore Water Supply case their Lordship's held that it was rightly not disputed by the learned counsel for the appellant therein that the Telecom department of the Union of India is an 'industry' within the definition because it is engaged in the commercial activity and not engaged in discharging any sovereign functions of the State. It is stated by the learned counsel for the second respondent that the second respondent is engaged in manufacture of vehicles for the Defence Department and discharging sovereign functions. 14. By applying the "dominant nature test" as evolved by the Supreme Court in Bangalore Water Supply case, even departments discharging sovereign functions, if they are units, which are industries and they are substantially severable, they can be considered to come within the Section 2(j) of the Act. Admittedly, the appellant was only a Civil Motor Driver in the second respondent organisation, therefore, even if the second respondent factory exclusively produces equipments for the Defence Department, the https://hcservices.ecourts.gov.in/hcservices/ nature of employment of the appellant is clearly severable and the appellant shall be entitled to invoke the jurisdiction under the Industrial Disputes Act questioning his removal from service. 15. The Hon'ble Supreme Court in Nirchiliya and Ors. vs.Management of Safire Theatre and another, (1991) 1 LLJ 111(SC) was considering the question as to whether the employee, who initially approached the Labour Court and abandoned the proceedings and initiated action under the Madras Shops and Establishments Act, 1941 ("Madras Act" for short) was entitled to avail such remedy. The Hon'ble Supreme Court held that under both the statues namely, the Industrial Disputes Act and the Madras Shops and Establishments Act there was no specific bar against the alternate forum being moved and therefore held that the jurisdiction under the Madras Act was not barred. Likewise in the instant case also there is no specific bar under the Conduct Rules or under the Industrial Disputes Act, which disentitle the appellant to move the Industrial Tribunal. 16. The learned Single Judge placed reliance on Act 35 of 1956, which brought about an amendment to the Industrial Employment (Standing orders) Act 1946, by introducing Section 13(B) stating that the said 1946 Act shall not apply to the industrial establishment insofar as the workmen employed therein or persons to whom Fundamental and Supplemental Rules, CCS Rules, Civil Services Temporary Services Rules etc., have been notified by the appropriate Government. In our view the said amendment is not applicable to the facts and circumstances of the present case, as the question being dealt with is regarding the jurisdiction under the Industrial Disputes Act. Therefore, we hold that the jurisdiction of the Industrial Tribunal is not barred. In such view of the matter, the question of remanding the matter for fresh consideration of the Industrial Tribunal is not necessary. 17. As noticed above, the charge memo was issued to the appellant in 1997 and despite lapse of 13 years, no finality has been arrived at. The charge was based upon a complaint said to have been given one Mr.Ambikapathy. When the matter was before the Industrial Tribunal, the management filed a memo giving up the domestic enquiry conducted by them and sought permission to lead evidence before the Tribunal and the Management also led evidence and the said Ambikapathy was examined as MW-1 and cross examined. It is evident from the cross examination of Ambikapathy, that he has himself stated that no such incident has occurred and that the complaint was not written in his own hand writing. The other management witnesses also did not support the charge. Therefore, it appears that the management were unable to prove that such incident had taken place. Yet, there appears to be some evidence on record connecting the alleged incident with the appellant. We are persuaded to thinks of these lines, since there has been a compromise letter, which was produced by the appellant as Exhibit W-4. Thus the employees https://hcservices.ecourts.gov.in/hcservices/ themselves have attempted to put an end to the dispute among themselves by arriving at a compromise. 18. Be that as it may, the allegation itself is that he assaulted an ex-employee and the ex-employee has now stated that does not know about the incident. In any event, we cannot brushaside the compromise letter, which was produced by the appellant and marked as Exhibit W-4. Thus, there some incident has occurred in the factory premises in which the appellant and the said Ambikapathy were involved and subsequently there appears to have been a reconciliation among themselves. However as the incident occurred in the factory premises, the same cannot be ignored or brushedaside, and therefore, we feel that the appellant cannot be completely exonerated. However, we opine that the punishment of removal from service is to harsh. Though in the counter affidavit filed in this appeal, it has been stated that the petitioner has earlier suffered two punishments of reduction in pay, one punishment of withholding of increment and suspension for manhandling another employee, these punishments were not the basis, while passing the order of removal from service. Considering the nature of the charge and considering the fact that the aggrieved person himself has denied the incident, we deem it appropriate that a lesser punishment be imposed on the appellant instead of removal from service, which is disproportionate to the charge. 19. Therefore, in our view that the punishment of removal from service could be modified to that of reinstatement in service without backwages, but the appellant shall be entitled to count the period between the date of removal and till the date of reinstatement for the purpose of computing his pensionary benefits alone. 20. In the result, the writ appeal is allowed and the order passed by the learned Single Judge is set aside, the order of punishment passed against the appellant stands modified as reinstatement without backwages and the appellant shall be entitled to count the period from the date of removal to till the date of reinstatement for the purpose of computing his length of service for calculation of pensionary and other retirement benefits alone. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn https://hcservices.ecourts.gov.in/hcservices/ To 1.The presiding Officer, Central Govt. Industrial Tribunal, Cum Labour Court, Shastri Bhawan, Haddows Road, Chennai – 600006. 2.The General Manager Heavy Vehicles Factory, Avadi, Chennai - 600054 1 cc To Mr.K.M.Ramesh, Advocate, SR.8370. 1 cc To Mr.R.Suresh Kumar, Advocate, SR.8468. W.A.No.1881 of 2010 NG(CO) RVL 22.02.2011 https://hcservices.ecourts.gov.in/hcservices/