IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.2864 of 2001 The Management, Tube Products of India Ltd., Avadi, Chennai – 600 054. ... Petitioner Vs 1.The Presiding Officer, I Addl. Labour Court, Madras. 2.K.Sathiah. ... 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 of the first respondent in I.D.No.12 of 1981 quash the order dated 30.03.1990 as well as the award dated 27.09.2000. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan and Co. For Respondents : Mr.N.S.Mukundan for R2 O R D E R The petitioner is the Management. They have come forward to challenge the order passed by the first respondent – Labour Court dated 30.03.1990 on the Preliminary issue as well as the Award dated 27.09.2000 in I.D.No.12 of 1981 and seeks for setting aside the same. 2. By the impugned Award, the Labour Court directed service continuity, payment of backwages for the period of his non- employment upto the date of his superannuation and other benefits. 3. The writ petition was admitted on 14.02.2001. Pending the writ petition, an order of interim stay was granted on condition that the petitioner Management deposits the entire backwages within six weeks. Subsequently, when the matter came up on 29.08.2001, it was informed that the condition imposed by this Court was complied with. 4. Heard the arguments of Mr.S.Ravindran appearing for M/s.T.S.Gopalan and Co., learned counsel for the petitioner and https://hcservices.ecourts.gov.in/hcservices/ Mr.N.S.Mukundan, learned counsel appearing for the second respondent. 5. The second respondent was employed by the petitioner Management. He was charge sheeted on 07.11.1977 on the ground that he had committed certain misconducts in terms of 22(g) and 22(v) of the Certified Standing Orders. The allegation against the petitioner was that on 05.11.1997 when one Sivalingam was going to MCM Polytechnic from the petitioner's Factory, the second respondent - workman who was standing just few yards from the entrance gate of MCM Polytechnic, caught hold of the collar of his shirt with his left hand and fisted him with his right hand on the left cheek on his face and told that "you suspended me that day, who will come to your rescue now". He also threatened that "if you tell any one, I will cut off your head". 6. An enquiry was conducted against the Workman. Thereafter, by an order dated 23.03.1978, he was dismissed from service. The workman had stated that he was a founder member of the Union and was active in the Union throughout. The Management was hostile to the Union and was determined to terminate his services somehow. The Management filed a civil suit in O.S.No.84 of 1972 against 20 workmen, who were active members of the Union for restraining them from assembling near the factory and the he was was one among those workmen. A charge memo was given to the workman during 1977 and since the charges were not proved, the Management withdrew the charges and the enquiry was dropped. But inspite of the same, the present charge memo came to be issued during November 1977. The workman denied the allegation that he ever used such a threatening language and also stated that the said Sivalingam never suspended the workman. 7. It was contended that the charge memo was given to him without any authority. He was not allowed to have effective defence in the enquiry. The Assistant Personnel Officer of the company was present through out the enquiry in order to threaten the witnesses. But inspite of the demands, he did not sign the minutes of the enquiry. The Enquiry Officer one Jacob was subordinate to the Assistant Personnel officer. In the enquiry, two witnesses were produced by Sivalingam and not by the Management. The witnesses were tutored by the Management. In a case of criminal assault, one normally expects an FIR to be lodged and even that was not done so. Notwithstanding the second respondent's defence, he was dismissed from service. 8. The second respondent/workman raised a dispute before the Conciliation Officer. On the failure report being sent to the Government, the Government of Tamil Nadu by G.O.Ms.No.2941 Labour and Employment Department dated 30.12.1980 referred the dispute for adjudication. On receipt of the reference order, the Labour Court registered the dispute as I.D.No.12 of 1981 and issued notice to the parties. https://hcservices.ecourts.gov.in/hcservices/ 9. The second respondent filed a claim statement on 06.07.1981 and a counter statement dated 02.01.1989 was filed by the Management, to which the second respondent filed a reply statement dated Nil 1989. 10. The Labour Court framed a preliminary issue regarding the validity of the enquiry. By its preliminary order dated 30.03.1990, the Labour Court declared that the enquiry conducted by the Management was not valid. The Labour Court held that since the workman was not paid subsistence allowance and was suspended as early as 1977, the enquiry conducted by them was vitiated. Even though the payment of Subsistence Allowance Act was enacted only in the year 1981 and that the enquiry had taken place before the date, that by itself cannot deny the right of the second respondent to claim subsistence allowance. Since the Management in their counter statement sought permission to lead a fresh evidence, the Labour Court permitted them to lead evidence to prove the charges before the Labour Court. 11. Before the Labour Court, on behalf of the Management, three witnesses were examined viz.,B.Nandagopal,M.W.1, B.Padmanabhan, M.W.2 and Sivalingam,M.W.3. The worker had examined himself as W.W.1. On the side of the petitioner Management, 11 documents were filed and they were marked as Exs.M1 to M11. 12. On an analyis of the materials placed before it, the Labour Court held that the evidence let in before the Labour Court was not sufficient to hold the second respondent guilty of the misconduct. Sivalingam, who had deposed as M.W.3 stated that he could not remember as to what was the exact statement uttered at the time when the second respondent assaulted him. At that juncture, there was no dialogue between Sivalingam and the second respondent. The Labour Court held that the charges were not proved through legal evidence. Since during the course of the trial, the workman already reached the age of superannuation, there was no scope for him to be reinstated. Therefore, the Labour Court directed continuity of service, payment of backwages for the period from the date of his non-employment upto the date of his superannuation and other benefits. 13. Mr.S.Ravindran, learned counsel for the petitioner Management contended that the preliminary order passed by the Labour Court was not valid. Under the Company's Standing Order, there is no provision for payment of subsistence allowance. Only when the suspension is rescinded, the workman will be eligible for any claim. Therefore, he stated that there is no illegality committed on the part of the Management. Hence, the Labour Court ought not to have set aside the enquiry. This Court is unable to agree with the said submission. If an employer has the power to suspend an employee, it is automatic that the employee must be paid subsistence allowance on the rate prescribed, failing which the workman is entitled for full wages. It is because it is the employer who had prohibited the employee from reporting to work. https://hcservices.ecourts.gov.in/hcservices/ The Standing Order produced by the Management though states suspension as a substantive punishment and there is no provision for suspension pending enquiry, then all the more reason, the Management will have to pay full wages to the workman. The word 'suspension' found in the Standing Order is susceptible to mean both suspension as a penalty add also suspension pending enquiry. 14. When a similar bylaws of a co-operative society came up for consideration, a Full Bench of this Court in The Secretary, Palani Co-operative Sales Society v. The Presiding Officer, Labour Court reported in AIR 1975 Madras 241, in paragraph 9 held as follows: "...Generally speaking, where the power of appointment is vested in an authority, it has the power of disciplinary action as well which again necessarily involves the power to keep a particular member of the establishment under suspension in a suitable case pending an enquiry. No conferment of a separate power to that effect is necessary. Apart from the power of appointment, the power can be implied in the disciplinary power to inflict punishment by way of removal or dismissal or any other punishment. In the instant case, sub-clause (h) extracted above visualises the power of suspension. In our opinion, it is not confined to suspension by way of punishment. It is also applicable to a case of suspnesion pending an enquiry. Discretion is given in the case of such suspension to allow subsistence allowance at a rate of one-fourth of substantive pay during the period of suspension. If no order of sanction has been made, it m ay appear that duirng the period of suspension no remuneration will be permissible. But this discretion coupled as it is with a benefit, has to be exercised in every case reasonably and according to law and justice and not whimsically or arbitrarily. It is only for stated reasons that the authority suspending a memebr pending an enqiry can deny susbsitence allowance to him." 15. The learned counsel for the petitioner Management on the merits of the case contended that it is a case of assault and therefore, no sympathy should be shown to him. For this purpose, he relied upon the judgment of this Court in Narayanan and others v. State of Tamil Nadu represented by Secretary reported in 1999 (1) L.L.N. 693. In that case, it was held that the workman indulging in violent activities even outside the factory premises after office hours, assaulting Factory Manager and calling him by names, must be held to be misconducts under the Standing Orders and disciplinary action can be initiated. 16. The learned counsel thereafter relied upon a judgment of the Supreme Court in Indra Bhanu Gaur v. Committee, Management of M.M.Degree College and Others reported in (2004) 1 SCC 281 for the https://hcservices.ecourts.gov.in/hcservices/ purpose of stating that non-payment of subsistence allowance unless was raised as an issue or any prejudice was caused to him from non- participating in the enquiry, that by itself cannot be a ground to set aside the enquiry. 17. The learned counsel also placed reliance upon a judgment of the Supreme Court in State Government of Madhya Pradesh and others v. Shankarlal reported in (2008) 2 SCC 55, wherein it was held if the employee has delayed the enquiry, then he cannot have a grouse about the non-payment of subsistence allowance for the purpose of setting aside the enquiry. 18. However, this Court is not inclined to accept the contentions raised. The original stand of the Management was that there was no necessity to pay subsistence allowance under the Standing Orders. Subsequently, they have raised the issue about lack of prejudice. But in the present case, the second respondent was not paid subsistence allowance and he has made it as an issue before the Labour Court. The labour Court agreed with the same. Therefore, no exception can be taken to the preliminary order. 19. With reference to the final Award, it must be noted that once an enquiry is set aside by the Labour Court, the entire issue is before the Labour Court including the appreciation of evidence let in before the Court. In the present case, the Labour Court held that while committing an overt act the exact language used by the workman was not mentioned by M.W.3 and there were discrepancies in the evidence let in before the Labour Court. The Labour Court also felt that there was a series of disputes between the workman and the Management and therefore, there is every possibility that the Management was wanting to axe the workman for some collateral purpose. 20. In the light of the above, the writ petition stands dismissed. No costs. In view of the dismissal of the writ petition, the workman is entitled to withdraw the amount lying in deposit before the Labour Court and also to claim the balance amount, if any, from the Management. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To The Presiding Officer, I Addl. Labour Court,Madras. https://hcservices.ecourts.gov.in/hcservices/ Copy to:The Section Officer, VR Section,High Court, Madras. 1 cc To M/s.T.S.Gopalan & Co., Advocate, SR.27687 1 cc To Mr.N.S.Mukundan, Advocate, SR.27852 W.P.No.2864 of 2001 PKB(CO) sra 03/05/2010 https://hcservices.ecourts.gov.in/hcservices/