IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2009 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.15538 of 1998 and WMP Nos.23529, 29128 and 29129 of 1998 The Management of Tamilnadu State Transport Corporation (Coimbatore Division – II) Ltd., Rep. By its Managing Director Erode. ... Petitioner Vs 1.The Presiding Officer, Labour Court, Salem. 2.C.Kulanthaivel ... Respondents PRAYER :- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records pertaining to the award passed by the first respondent made in I.D.No.145 of 1997 dated 29.01.1998 and quash the same. For petitioner : Mr.T.Chandrasekaran For R2 : Mr.Ajay Khose O R D E R The petitioner is the State owned transport corporation. The present writ petition has been filed challenging the award of the Labour Court in I.D.No.145 of 1997 dated 29.01.1998. By the aforesaid award the Labour Court granted reinstatement without backwages but with service continuity to the second respondent workman. 2. The writ petition was admitted on 06.10.1998. An interim-stay was granted. Subsequently, when the second respondent filed a vacate stay application as well as a direction to make 17- B payments, this Court directed the petitioner to pay the second respondent a sum of Rs.68,700/- towards arrears of Section 17-B payments and also to continue to make payment of Rs.3800/- per month starting form 01.10.1999 till the date of disposal of the writ petition. Liberty was also granted to the petitioner corporation to reinstate the workman without prejudice to their contention in the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 3. It is seen from the affidavit filed by the second respondent during August 1998 his age was noted as 49 yrs. Therefore, by now he would have reached the age of superannuation had he continued in the service of the petitioner corporation. 4. The petitioner corporation did not reinstate the second respondent taking advantage of the observation made by this Court. During the pendency of the writ petition, the matter was referred to the Lok Adalat and no compromise was possible. It was sent back to this Court for disposal on merits. 5. It is seen from the records that the second respondent had joined as a Clerk in the petitioner corporation on 18.04.1986. A complaint was given by a Junior Assistant by name Mrs.K.Logambal that on 15.06.1996 when she went to get stationery the second respondent obstructed her passage. He abused her and also slapped her on her face. She also named the employees who were present at the spot. Based on the said complaint, the Branch Manager, Tiruppur Rural Branch forwarded the same to the Managing Director of the petitioner corporation. The canteen incharge one K.Palaniappan also confirmed the said incident. 6. On the basis of these reports, the Managing Director framed a charge sheet dated 17.06.1996 against the second respondent. It was stated that the second respondent had abused the co-employee with bad language and had also slapped her. Though he denied the incident of using abusive language and the slapping but stated that the said Logambal was was spreading canards against the second respondent for over six months and he merely enquired her about the same. 7. An enquiry was ordered to be conducted in respect of the charge memo. In the enquiry held on 06.07.1996, the canteen incharge Palaniappan was examined as M.W.1. In the chief examination, the said witness confirmed giving a written compliant and also narrated the incident that took place on 15.06.1996. He also confirmed the use of abusive language and the slapping of Logambal. 8. The complainant Logambal was also examined as M.W.2. She deposed as per the written complaint given by her earlier. The second respondent cross examined her. The following answers were elicited for question Nos.7 and 10 in the enquiry:- Question No.7 :- On the date of the incident what did I ask and what was the reply given by you? Ans : When I came out of the canteen you obstructed and abused me 'You Prostitute' did you say anything about me? I told you that I did not say anything and went out of the place. Question No.10:- How many slappings I gave you? https://hcservices.ecourts.gov.in/hcservices/ Ans: One slap. The said witness also denied any previous enmity between her and the second respondent. The second respondent also gave a statement denying the said incident. 9. The Enquiry Officer by his report dated 15.07.1996 found the second respondent guilty of the charges. He also stated the women worker has to come to the enquiry and also to narrate the exact abusive words used by a male employee. She would have done it only under great humiliation. A second show cause notice was given by the petitioner. The second respondent gave a reply dated 19.08.1996. He merely stated that some of the other witnesses whose names were given earlier were not examined. The petitioner management by an order dated 30.08.1996 dismissed the second respondent from service. 10. Thereafter the second respondent made a compassionate request for an employment in the corporation. The petitioner management informed that he may be re-employed as a new entrant in the post of a Junior Clerk if he was willing. Since the second respondent refused to accept the said term, the offer was not given effect to . 11. The second respondent raised an industrial dispute before the Government Labour Officer which finally reached the first respondent Labour Court. The first respondent Labour Court took up the dispute as I.D.No.145 of 1997 and issued notice to the petitioner management. They filed a counter statement in opposition to the claim made by the second respondent. 12. Before the Labour Court, the second respondent filed one document which was marked as Ex.W1. On the side of the petitioner 11 documents were filed and they were marked as Exs.M1 to M11. The Labour Court in Paragraph 5 of the impugned award held that the domestic enquiry was conducted fair and proper. It also held that the charge of abuse and slapping was proved, but the dismissal for the said action is disproportionate. Therefore, deprivation of his backwages for one year will be the sufficient punishment. The management's offer dated 13.05.1997 which was marked as Ex.M11 was commented upon by the Labour Court by stating that such a punishment of allowing the second respondent to enter as a new entrant would be a disproportionate punishment which will deprive 10 years of service put in by the workman and therefore not acceptable to the Labour Court. It is against this award, the present writ petition has been filed. 13. Mr.Ajay Khose, learned counsel for the second respondent placed reliance upon the judgment of the Supreme Court in Mahindra and Mahindra Ltd v. N.B.Naravade (2005) 3 SCC 134 found in paras 20 and 21, which reads as follows: 20. .....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 https://hcservices.ecourts.gov.in/hcservices/ 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. 21. Learned counsel for the respondent contended that there was sufficient provocation for the use of such words because the workman was asked to do certain work which was impossible to be done by any person without causing harm to himself, but this is not the defence that was taken in the enquiry or before the Labour Court and is being argued for the first time before this Court. On the contrary, the sole defence of the workman was that he did not remember abusing the Engineer concerned. (emphasis added) 14. Therefore, the learned counsel submitted that was a case where abuses were made more than once. But in the present case even assuming without admitting that the incident had taken place then it was a case of only a single abuse which should not be viewed strictly. The learned counsel also stated that the Labour Court had went into the issue and used its discretion under Section 11-A of the I.D.Act by granting the relief of reinstatement. Therefore this Court should not interfere with the discretion exercised by the Labour Court. He also placed reliance upon the recent judgment of the Division Bench of this Court reported in 2008 (4) L.L.N.545 ( Management of Chemplast Sanmar Ltd v. Presiding Officer, Labour Court, Salem in support of his argument. 15. The argument advanced by the learned counsel does not merit acceptance. The second respondent not only had the audacity of abusing a co-worker, that too a women employee by calling her as a prostitute and also slapped her on her face in the presence of other employees. The said conduct can never be condoned by this court. The attempt made by the counsel to distinguish the judgment of the Supreme Court in Mahindra & Mahindra on the basis of number of slaps one had heaped on another employee cannot be a sound argument. 16. In order to remove the misconception in the arguments advanced by the learned counsel for the second respondent, it is necessary to refer to the decision of the supreme Court in L&T Komatsu Ltd. v. N. Udayakumar,(2008) 1 SCC 224. In that case the Supreme Court had reviewed all the previous cases bearing on the https://hcservices.ecourts.gov.in/hcservices/ 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 Sahu5 and in New Shorrock Mills v. Maheshbhai T. Rao6 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 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) 17. In the light of the above legal precedents and the factual matrix involved in this case, the award of the Labour Court calls for interference. The Labour Court in a light- hearted fashion had granted the relief without even any discussion on the nature of misconduct committed by the second respondent. Therefore the writ petition stands allowed and the impugned award of the Labour Court is set aside. https://hcservices.ecourts.gov.in/hcservices/ However, there will be no order as to costs. The miscellaneous petitions stand closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. svki To The Presiding Officer, Labour Court, Salem. + 1 CC to Mr.T.Chandrasekaran,Advocate,SR.NO.3516 W.P.No.15538 of 1998 VSV(CO) EM/9.2.09 https://hcservices.ecourts.gov.in/hcservices/