IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.11.2009 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.No.14116/1996. 1.R.Govindarajan 2.M.Rajadurai 3.P.Kanagaraj ... Petitioners Vs. 1.The Presiding Officer, Labour Court, Tiruchi. 2.The Management of Moorco (India) Limited., Viralimalai 621 316. ... Respondents Writ Petition filed under Art.226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to common award of the Labour Court, Trichy in I.D.Nos.25 to 27 of 1994 dated 11.01.1996, quash the same and substitute it by an award setting aside the order of dismissal dated 09.02.1993 and reinstate the petitioners in service with full backwages, continuity of service and all other attendant benefits. For petitioners : Mr.N.G.R. Prasad, for M/s.Row and Reddy For Respondents : Mr.V.Karthick, for M/s.T.S.Gopalan and Co., for R-2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R This Writ Petition is directed against the common award of the Labour Court, Trichirapalli dated 11 January 1996 in Industrial Dispute No.25 to 27 of 1994 whereby and whereunder, the industrial dispute raised by the petitioners challenging their dismissal by the second respondent was dismissed. Background facts :- 2. The petitioners were working in the second respondent establishment, having joined the service on 05.03.1984, 26.08.1985 and 05.03.1984 respectively. The petitioners were also involved in trade union activities to protect the interest of the workers. 3. During the month of November 1992, the second respondent Management introduced an incentive scheme which was found to be non- beneficial to the workmen. Therefore, the union resorted to a joint action against the management. There was a demand for ex-gratia over and above the statutory bonus. The Management immediately resorted to lockout under the guise of suspension of operation. It was followed by conciliation proceedings and ultimately, a settlement was entered into between the parties on 1 December 1992 under Section 12(3) of the I.D. Act. 4. The dispute was settled and as agreed, the workmen reported for work on 3 December 1992. However, Mr.Ramesh, Personnel Manager of the second respondent Company insisted that the workmen should sign the settlement deed under Section 18(1) as a condition for allowing them to enter the factory. Individual workers were not willing for such a course as according to them, they would enter the factory, wear their uniforms, punch card and then would proceed to sign the settlement. However, such a course was not agreeable to the management and as such, there was utter confusion. The petitioners persuaded the workers to sign the settlement. They succeeded in convincing the workers and accordingly, they attended the second shift. However, the management suspended the petitioners on 03.12.1992. The petitioners were issued charge sheet on 21.12.1992. In the said charge sheet, it was alleged that the petitioners have resorted to strike inside the factory and threatened the workmen and disobeyed the lawful orders of the superiors and thereby, committed an act subversive of discipline. The petitioners submitted their explanation. In the explanation, they have also explained the circumstances leading to the confusion and expressed regret about what had happened. The explanation was not accepted by the Management which resulted in issuing a second show cause notice. In the said https://hcservices.ecourts.gov.in/hcservices/ notice, the Management stated that they were not convinced with the explanation and as such, they intend to impose punishment of dismissal from service. The petitioners submitted their explanation to the second notice wherein they have indicated that the incident was on account of the confusion and they were not responsible for the same. Petitioners also pleaded leniency. However, the management was determined to dismiss them and accordingly, an Order of dismissal was passed on 9 February 1993. However, no enquiry was conducted before such dismissal. 5. The petitioners raised industrial dispute in I.D.Nos.25 to 27 of 1994 before the Labour Court. The Labour Court was of the view that there was a clear admission of guilt in the explanation submitted by the petitioners and as such, there was no necessity to conduct an enquiry by the second respondent and ultimately, the punishment imposed by the second respondent was confirmed. Feeling aggrieved, the dismissed workmen are before this Court. Submissions :- 6. The learned counsel for the petitioner has taken me through the explanation submitted by the petitioners to the show cause notice. According to the learned counsel, there was nothing like an admission in the explanation submitted by the petitioners so as to pass an Order of dismissal by the management without conducting enquiry. The learned counsel contended that the award of the Labour Court is perverse and the Court had approved the punishment awarded by the management without independently considering the matter. It was his further contention that documents were marked without examining witnesses and as such, the very procedure adopted by the Labour Court was against the labour jurisprudence. 7. The learned counsel for the second respondent supported the award of the Labour Court. According to the learned counsel, when the petitioners themselves have admitted their misconduct, there was no question of the management conducting an enquiry in the matter. The factum of admission of the charges as found in the explanation submitted by the petitioners were considered by the Labour Court and having convinced that there was an admission of misconduct by the workmen themselves, the Labour Court concurred with the decision taken by the second respondent. According to the learned counsel, there was no necessity to conduct an enquiry in the subject matter in view of the admission made by the petitioners with respect to the incident happened on 03.12.1992. The core question :- 8. The only question which arises for consideration in this Writ https://hcservices.ecourts.gov.in/hcservices/ Petition is as to whether the explanation submitted by the petitioners to the show cause notice issued by the second respondent contained an unequivocal admission of misconduct so as to enable the management to dismiss the workmen without conducting enquiry. Discussion :- 9. The Petitioners were the office bearers of the employees union. The union was instrumental in arriving at a settlement with the management. There was an unrest among the workers in the second respondent factory and ultimately, settlement was arrived at on 1 December 1992. The petitioners being the office bearers of the Union signed the said settlement. There was a unanimous decision to reopen the factory on 3 December 1992. The petitioners along with the other workmen reached the factory at about 6.20 a.m. on 3 December 1992. As per the show cause notice, petitioners were directed to proceed for reporting duty as they have already signed the settlement on 1 December 1992. All the other workmen were asked to proceed to the lunch room to sign the settlement under Section 18(1) of the I.D. Act. According to the management, the petitioners refused to resume work and they have incited the other workmen against signing the settlement on the ground that certain bilateral issues were also to be settled. It was the case of the Management that the petitioners failed to obey the orders of the superiors and thereby acted in a violent manner and ultimately, they were suspended. It was only after the suspension of the petitioners, the other workers agreed to sign the settlement and to resume work. Accordingly, there was interruption of work and the factory could resume its function only from the second shift. According to the management, the misconduct was serious in nature and show cause notice was accordingly issued. In the show cause notice dated 21 December 1992, there was no mention of the name of the workers who were prevented by the petitioners and the nature of orders passed by the management to resume duty or to ease the situation. The petitioners have submitted their explanation. The third petitioner has submitted a detailed explanation which contains an account of what has happened on the fateful day. Since the Order of dismissal was made solely on account of the alleged admission made by the petitioners, it is necessary to consider the explanation for the purpose of ascertaining as to whether the explanation contained an unequivocal and clear admission of misconduct. https://hcservices.ecourts.gov.in/hcservices/ 10. The explanation submitted by the third petitioner (Mr.P.Kanagaraj) dated 28.12.1992 reads thus :- 28/12/1992 From P. Kanagaraj, EMP No.3025, Moorco (I) Limited, Viralimalai – 621 316. To Vice President, Moorco (I) Limited, Viralimalai – 621 316. Sub : Explanation submitted for the letter written in English dated: 21/12/1992 and letter in Tamil dated: 23/12/1992 – Reg. Sir, I received your letter dated: 23/12/1992. I understood from your letter that you have placed me under suspension. On 01/12/1992, I signed in 12(3) settlement in the presence of Thiru.A.C.L. in my capacity as the Treasurer of the Welfare Association and in 18(1) settlement in my capacity as the employee of the company and on the next day (i.e. 02/12/1992), myself and one Thiru.Sekar, went to the house of each and every employee and told them that we had signed in 12(3) settlement and have entered into 18(1) settlement and told them to report for duty after signing in the settlement. Accordingly, on 03/12/1992 the employees in the first shift came by the company bus and entered into the company at 6.20 A.M. The P.M. Moorco stood in front of the company gate, and stated that, only after signing 18(1) settlement, they should wear the uniform, footwear, and enter the company to punch the card. The office bearers of the Employees union and the workers asked them to open the Company, so that they could enter inside, punch the card, and then affix their signatures. I myself too told the P.M. to give the papers to me in order to https://hcservices.ecourts.gov.in/hcservices/ get the signatures from them. The P.M. refused to do so. Since a tensed situation arose at the entrance of the gate thereafter, being helpless I, who have signed both in the 12(3), 18(1) settlements, was scared to enter the company leaving behind the employees of our Union and so I did not enter. Subsequently, I came to know that another Union had conducted a General Body Meeting on 02/12/1992 and in that meeting they have taken some decision or other I am not aware of the said decision. So, having thought that the issue would be magnified, I discussed with Thiru.Nadimuthu, who was nearer me and with other employees. We were of the view that the issue was taken up by the office bearers and members of the employees union. We three i.e. Myself, Sekar and Nadimuthu after consulting with each other, decided to report for duty. So, we told the xomox P.M. that we wanted to speak with Thiru.T.K. Jayaram and Thiru.Arun Amudham, who are the representatives of the company. Accordingly he consulted with the management, told that they have placed myself and Thiru.Sekar under suspension, showed the suspension order, pasted the same at the entrance, and instructed us not to report for duty. He further told that, the others could report for duty the next day for the first shift. We were helpless and could not proceed further. But, having thought that a similar situation should not arise in the second shift also, myself, and one Thiru. Sekar told the other office bearers of our union namely Thiru.Balasubramaniam and Thiru.Paramasivam about the incidents that took place and told them that such an issue should not arise in the second shift. They too, having agreed to the same reported for duty for the second shift along with our members without raising any dispute. After witnessing the same the office bearers and members of other association also reported for duty. After this occurrence, some of the workers who have to report duty the next day also affixed their signatures in 18(1) settlement on the same day after 3 P.M. and reported for duty the next day. Therefore, I humbly state that I have not involved in the various activities as mentioned in your letter like, striking work, preventing the workmen from discharging their duties, inducing and threatening the workmen from carrying out their duties, https://hcservices.ecourts.gov.in/hcservices/ refusing to abide by the justifiable requests of the superiors and caused subversive of discipline. I also state that I never intended to involve the members of our Union and other workmen in the said Acts. I regret to state that it is only my misfortune. Therefore on my behalf and on behalf of the employees union I humbly request you to revoke my suspension order, and reinstate me. I also humbly submit on behalf of me and the Union that such an incident will never take place in future. Thanking you, Sd/-xxx P.Kanagaraj Date : 28/12/1992 11.The explanation submitted by the first petitioner to the second show cause notice reads thus :- 22/01/1993 Trichy. From P. Govindarajan, Plot No.31, Rajeev Gandhi Nagar, Trichy-12. To The President, Moorco India Limited, Chennai. Sir, Salutations. Sir, you have mentioned that you have lost confidence in me and three others due to the occurrence that took place accidently at present and also the incidents that had taken place before. Further more you have informed us that the Moorco Ltd., has made a huge production. From this, it is clearly evident that you put forward both the merits and demerits with open mindedness. I feel that you have imposed maximum punishment on us. Don't put us in a similar situation hereinafter. I realise that the 'lock out' of the company, affects the reputation of the company. At the same time, you have increased the production of Xomox. Further, you have https://hcservices.ecourts.gov.in/hcservices/ established a strict discipline, (i.e. to act in accordance with the rules and regulations of the company). Further you have made the employees to understand what is meant by a Company. At the same time, you have also created such a similar situation in Moorco. Further, you have established the firm decision of the Company with regard to exgratia. We have also understood the similar situation. The circumstances above have made us to realise the stability and principles of the company. Therefore I request you to understand our situation and permit us to work. Therefore, I request you to adhere to the regulations of the company that prevails at present continuously and to take steps to strive hard together with the union leaders for the upliftment of the company. So, only if it is done, the attention of the employees would not be diverted. I believe that apart from the growth of the company, you would also take care of the upliftment of the life of the employees. Therefore, I humbly request you to abandon the proposed dismissal brought out (alleged) against me, so that our families would not suffer. Thanking you, Yours truly, Sd/-xxx R.Govindarajan. Note : I requested Thiru.Ramesh, P.M. to permit me to talk to you in person. He also agreed to get an appointment from you. Due to unavoidable circumstances, I was not able to talk with you. Hence I wrote down this letter to you mentioning the facts which I have in my mind. Thanking you," 30/12/1992 https://hcservices.ecourts.gov.in/hcservices/ 12. The explanation submitted by the second petitioner reads thus :- 30/12/1992 Trichy-12 From M.Rajadurai, Machinist, Moorco (India) Limited, Viralimalai – 621 316. To The Vice President, Moorco (India) Limited, Viralimalai – 621 316. Sub : Your letter dated:21/12/1992 – Reg. Sir, Salutations ! I regret very much for the incident that took place unexpectedly on 03/12/1992. It happened unfortunately due to the confusion that arose amidst the employees. My wish and desire is that I should work continuously in our company. I hereby assure you that I will abide by the rules and regulations and discipline of the company and will work to your utmost satisfaction. Therefore I humbly request you to revoke the disciplinary proceedings initiated against me and permit me to work continuously. Thanking you, Yours truly, Sd/-xxx M.Rajadurai (Machinist) Trichy-12 30/12/1992" https://hcservices.ecourts.gov.in/hcservices/ 13. The further explanation given by the first respondent reads as follows :- From R. Govindarajan, Turner, Moorco India Limited, Viralimalai. To The Vice President, Moorco India Limited, Viralimalai. Sub : Explanation submitted to your letter dated : 21/12/1992 – reg. Sir, Salutations ! I regret very much for the incident that took place unexpectedly on 03/12/1992. It happened unfortunately due to the confusion that arose amidst the employees. My wise and desire is that I should work continuously in our company. I hereby assure you that I will abide by the rules and regulations and discipline of the company and will work to your utmost satisfaction. Therefore I humbly request you to revoke the disciplinary proceedings initiated against me and permit me to work continuously. Thanking you, Yours truly, Sd/-xxx Govindarajan. 14. These explanations were translated by the Official Translator of the High Court from Tamil as the learned counsel for the petitioners seriously disputed the translated version of the explanation submitted by the learned counsel for the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 15. I have considered the explanations carefully and it is found from the detailed explanation submitted by the third petitioner that his attempt was only to narrate the sequence of events that happened on 3 December 1992. The explanation shows that after the settlement on 1 December 1992, petitioners have contacted the individual workers at their residence and informed them of the settlement and called upon them to sign the settlement under Section 18(1) on 3 December 1992. According to the explanation, employees in the first shift arrived at the factory campus at about 6.20 a.m. However, they were prevented by the Personnel Manager and he insisted that only after signing 18(1) settlement, they could enter the factory. However, the office bearers of the employees union asked the management to open the factory so that they could enter inside, punch the card and then affix their signature in the settlement. The third petitioner requested the Personnel Manager to give the settlement papers to him so as to enable him to get the signature of the workers. However, the Personnel Manager refused to accept his request. Therefore, there was a tense situation prevailing at the entrance of the gate and the third petitioner being the office bearer of the union was not prepared to resume work leaving behind the employees. Accordingly, he discussed the matter with the other employees and called upon them to sign the settlement and to report for duty. It was only on account of the persuasion of the petitioners, the workers signed the settlement and attended the second shift. After narrating the sequence of events, the third petitioner has clearly stated that he was not involved in the activities as mentioned in the show cause notice and there was no act of preventing the workmen from discharging their duties. It was only while concluding the explanation he has expressed regret as to what had happened. 16. In the explanation submitted by the first respondent also, there was reference about the confusion created near the factory gate. There were similar averments in the explanation submitted by the second petitioner also. 17. In the second show cause notice issued on 09.01.2003, there was no indication that the petitioners have admitted the misconduct. The management has only communicated the proposed action to terminate their services and called upon the petitioners to submit their views. The petitioners have again submitted their explanation which also contains reference about the confusion created on the reopening day and the unfortunate events. The explanation submitted by the petitioners to the second show cause notice was considered by the management and an Order of termination was passed as according to the second respondent, the misconduct was clearly admitted in the explanation submitted by the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 18. The petitioners raised an industrial dispute before the Labour Court. Individual petitioners have filed claim petitions wherein it was clearly stated that they have not admitted the allegations levelled against them by the Management. The claim petition also contains the details of the incident that occurred on 3 December 1992. The petitioners have narrated the events which took place on the said day and according to them, the entire incident has arisen out of confusion as the workers were not prepared to sign the settlement without allowing them to enter the factory. 19. Before the Labour Court, the second respondent has filed counter in answer to the contentions raised in the claim petition. Even in the said statement, it was not the contention of the second respondent that there was a clear admission in the explanation submitted by the petitioners and as such, there was no necessity to conduct an enquiry in the matter. In short, the defence taken by the second respondent for their failure to conduct enquiry was only on account of the alleged admission made by the petitioners in their explanation to the show cause notice. 20. The Labour Court adopted a very strange procedure in marking the documents produced by the parties without examining the witnesses. There is nothing indicated in the award to the effect that the parties have agreed to mark the documents by consent. The Labour Court found that there was admission about the misconduct in the explanation submitted by the petitioners and as such, the second respondent was justified in dismissing them without conducting enquiry. The Labour Court placed reliance on the documents marked on the side of the management to arrive at a conclusion that the enquiry was not necessitated in the matter on account of the voluntary admission made by the petitioners. Though the second respondent by way of abundant caution prayed for adducing evidence, there was no Order permitting them to adduce evidence as the Labour Court was of the view that there was no necessity to lead evidence on account of the admission made by the petitioners. 21. The challenge made by the petitioners with respect to the alleged admission was not considered by the Labour Court. The Labour Court adopted a novel method and arrived at a finding that the petitioners have admitted the charges, overlooking the averments in the claim statement to the effect that it was not an admission and they have only explained the circumstances leading to the workers unrest on the fateful day and it was only as a concluding remark they have expressed their regret. Evidentiary value of Admission :- 22. It is true that admission is a best piece of evidence which https://hcservices.ecourts.gov.in/hcservices/ could be used against the maker of the statement. However, it is not possible to infer admission from a statement. Admission to be used against the maker should be clear, unambiguous, unequivocal and without any scope for two interpretations and it should lead to a clear conclusion of admission. While construing a document for the purpose of deciding as to whether there was clear cut admission, the Court has to consider the entire text. It is not possible to take one or two sentences here and there and to come to a conclusion that there was admission. There should be an express declaration to qualify it as an admission so as to bind the party. 23. Section 17 of the Indian Evidence Act deals with admission. As per the said provision, an admission is a statement whether it be oral or documentary or contained in an electronic form, which suggests any inference as to any fact in issue or relevant fact. 24. Admission, though is a piece of evidence, it could be explained by the author. Admission made by a party has to be considered in the factual context of the matter. It is open to the party to seek an opportunity to explain the admission as otherwise, the matters would be decided on the basis of such admissions. 25. The alleged admission in the case on hand has to be considered in the light of the factual scenario. The petitioners were instrumental in arriving at a settlement between the workers and the management. Admittedly, they have signed the statement on 1 December 1992. In their explanation, they have also stated that individual workers were approached by