The Management of Tamilnadu State Transport Corporation(Coimbatore Division – II) Ltd.,Rep. By its Managing DirectorErode. v. The Presiding Officer, Labour Court, Salem

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.01.2009CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.15538 of 1998 andWMP Nos.23529, 29128 and 29129 of 1998The Management of Tamilnadu State Transport Corporation(Coimbatore Division – II) Ltd.,Rep. By its Managing DirectorErode. ... Petitioner Vs1.The Presiding Officer, Labour Court, Salem.2.C.Kulanthaivel ... RespondentsPRAYER :- Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Certiorari, callingfor the records pertaining to the award passed by the firstrespondent made in I.D.No.145 of 1997 dated 29.01.1998 and quashthe same.For petitioner : Mr.T.ChandrasekaranFor R2 : Mr.Ajay KhoseO R D E R The petitioner is the State owned transport corporation. Thepresent writ petition has been filed challenging the award of theLabour Court in I.D.No.145 of 1997 dated 29.01.1998. By theaforesaid award the Labour Court granted reinstatement withoutbackwages but with service continuity to the second respondentworkman.2. The writ petition was admitted on 06.10.1998. Aninterim-stay was granted. Subsequently, when the second respondentfiled a vacate stay application as well as a direction to make 17-B payments, this Court directed the petitioner to pay the secondrespondent a sum of Rs.68,700/- towards arrears of Section 17-Bpayments and also to continue to make payment of Rs.3800/- permonth starting form 01.10.1999 till the date of disposal of thewrit petition. Liberty was also granted to the petitionercorporation to reinstate the workman without prejudice to theircontention in the writ petition. https://hcservices.ecourts.gov.in/hcservices/

3. It is seen from the affidavit filed by the secondrespondent during August 1998 his age was noted as 49 yrs.Therefore, by now he would have reached the age of superannuationhad he continued in the service of the petitioner corporation.4. The petitioner corporation did not reinstate the secondrespondent taking advantage of the observation made by this Court.During the pendency of the writ petition, the matter was referredto the Lok Adalat and no compromise was possible. It was sentback to this Court for disposal on merits. 5. It is seen from the records that the second respondent hadjoined as a Clerk in the petitioner corporation on 18.04.1986. Acomplaint was given by a Junior Assistant by name Mrs.K.Logambalthat on 15.06.1996 when she went to get stationery the secondrespondent obstructed her passage. He abused her and also slappedher on her face. She also named the employees who were present atthe spot. Based on the said complaint, the Branch Manager,Tiruppur Rural Branch forwarded the same to the Managing Directorof the petitioner corporation. The canteen incharge oneK.Palaniappan also confirmed the said incident. 6. On the basis of these reports, the Managing Directorframed a charge sheet dated 17.06.1996 against the secondrespondent. It was stated that the second respondent had abusedthe co-employee with bad language and had also slapped her. Thoughhe denied the incident of using abusive language and the slappingbut stated that the said Logambal was was spreading canardsagainst the second respondent for over six months and he merelyenquired her about the same. 7. An enquiry was ordered to be conducted in respect of thecharge memo. In the enquiry held on 06.07.1996, the canteenincharge Palaniappan was examined as M.W.1. In the chiefexamination, the said witness confirmed giving a writtencompliant and also narrated the incident that took place on15.06.1996. He also confirmed the use of abusive language and theslapping of Logambal. 8. The complainant Logambal was also examined as M.W.2. Shedeposed as per the written complaint given by her earlier. Thesecond respondent cross examined her. The following answers wereelicited for question Nos.7 and 10 in the enquiry:-Question No.7 :- On the date of the incident what did I ask andwhat 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 Idid 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 andthe second respondent. The second respondent also gave a statementdenying the said incident. 9. The Enquiry Officer by his report dated 15.07.1996 foundthe second respondent guilty of the charges. He also stated thewomen worker has to come to the enquiry and also to narrate theexact abusive words used by a male employee. She would have doneit only under great humiliation. A second show cause notice wasgiven by the petitioner. The second respondent gave a reply dated19.08.1996. He merely stated that some of the other witnesseswhose names were given earlier were not examined. The petitionermanagement by an order dated 30.08.1996 dismissed the secondrespondent from service. 10. Thereafter the second respondent made a compassionaterequest for an employment in the corporation. The petitionermanagement informed that he may be re-employed as a new entrant inthe post of a Junior Clerk if he was willing. Since the secondrespondent refused to accept the said term, the offer was notgiven effect to . 11. The second respondent raised an industrial dispute beforethe Government Labour Officer which finally reached the firstrespondent Labour Court. The first respondent Labour Court tookup the dispute as I.D.No.145 of 1997 and issued notice to thepetitioner management. They filed a counter statement inopposition to the claim made by the second respondent.12. Before the Labour Court, the second respondent filed onedocument which was marked as Ex.W1. On the side of the petitioner11 documents were filed and they were marked as Exs.M1 to M11.The Labour Court in Paragraph 5 of the impugned award held thatthe domestic enquiry was conducted fair and proper. It also heldthat the charge of abuse and slapping was proved, but thedismissal for the said action is disproportionate. Therefore,deprivation of his backwages for one year will be the sufficientpunishment. The management's offer dated 13.05.1997 which wasmarked as Ex.M11 was commented upon by the Labour Court by statingthat such a punishment of allowing the second respondent to enteras a new entrant would be a disproportionate punishment which willdeprive 10 years of service put in by the workman and thereforenot acceptable to the Labour Court. It is against this award, thepresent writ petition has been filed.13. Mr.Ajay Khose, learned counsel for the second respondentplaced reliance upon the judgment of the Supreme Court in Mahindraand Mahindra Ltd v. N.B.Naravade (2005) 3 SCC 134 found in paras20 and 21, which reads as follows:20. .....As noticed hereinabove at least in twoof 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 heldto be disproportionate.” In this case all the forumsbelow have held that the language used by the workmanwas filthy. We too are of the opinion that thelanguage used by the workman is such that it cannot betolerated by any civilised society. Use of suchabusive language against a superior officer, that toonot once but twice, in the presence of hissubordinates cannot be termed to be an indisciplinecalling for lesser punishment in the absence of anyextenuating factor referred to hereinabove. 21. Learned counsel for the respondent contended thatthere was sufficient provocation for the use of suchwords because the workman was asked to do certain workwhich was impossible to be done by any person withoutcausing harm to himself, but this is not the defencethat was taken in the enquiry or before the LabourCourt and is being argued for the first time beforethis Court. On the contrary, the sole defence of theworkman was that he did not remember abusing theEngineer concerned. (emphasis added)14. Therefore, the learned counsel submitted that was a casewhere abuses were made more than once. But in the present caseeven assuming without admitting that the incident had taken placethen it was a case of only a single abuse which should not beviewed strictly. The learned counsel also stated that the LabourCourt had went into the issue and used its discretion underSection 11-A of the I.D.Act by granting the relief ofreinstatement. Therefore this Court should not interfere with thediscretion exercised by the Labour Court. He also placed relianceupon the recent judgment of the Division Bench of this Courtreported in 2008 (4) L.L.N.545 ( Management of Chemplast SanmarLtd v. Presiding Officer, Labour Court, Salem in support of hisargument. 15. The argument advanced by the learned counsel does notmerit acceptance. The second respondent not only had the audacityof abusing a co-worker, that too a women employee by calling heras a prostitute and also slapped her on her face in the presenceof other employees. The said conduct can never be condoned by thiscourt. The attempt made by the counsel to distinguish the judgmentof the Supreme Court in Mahindra & Mahindra on the basis of numberof slaps one had heaped on another employee cannot be a soundargument. 16. In order to remove the misconception in the argumentsadvanced by the learned counsel for the second respondent, it isnecessary to refer to the decision of the supreme Court in L&TKomatsu Ltd. v. N. Udayakumar,(2008) 1 SCC 224. In that case theSupreme 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 passagesfound in paragraphs 10 and 11:-10. ......As noticed hereinabove at least in two ofthe cases cited before us i.e. Orissa Cement Ltd. andNew Shorrock Mills this Court held: ‘Punishment ofdismissal for using of abusive language cannot beheld to be disproportionate.’ In this case all theforums below have held that the language used by theworkman was filthy. We too are of the opinion thatthe language used by the workman is such that itcannot be tolerated by any civilised society. Use ofsuch abusive language against a superior officer,that too not once but twice, in the presence of hissubordinates cannot be termed to be an indisciplinecalling for lesser punishment in the absence of anyextenuating factor referred to hereinabove.”11. ......It may also be noticed that in OrissaCement Ltd. v. Adikanda Sahu5 and in New ShorrockMills v. Maheshbhai T. Rao6 this Court held that useof abusive language against a superior, justifiedpunishment of dismissal. This Court stated‘punishment of dismissal for using abusive languagecannot be held to be disproportionate’. If that bethe position regarding verbal assault, we think thatthe position regarding dismissal for physicalassault, must be found all the more justifiable.Recently, in Muriadih Colliery of Bharat Coking CoalLtd. v. Bihar Colliery Kamgar Union this Court afterreferring to and quoting the relevant passages fromKrishnakali Tea Estate v. Akhil Bharatiya ChahMazdoor Sangh9 and Tournamulla Estate v. Workmenheld: (SCC p. 336, para 17)‘The courts below by condoning an act of physicalviolence have undermined the discipline in theorganisation, hence, in the above factual backdrop,it can never be said that the Industrial Tribunalcould have exercised its authority under Section 11-Aof the Act to interfere with the punishment ofdismissal.’ (emphasis added)17. In the light of the above legal precedents and thefactual matrix involved in this case, the award of the LabourCourt calls for interference. The Labour Court in a light-hearted fashion had granted the relief without even anydiscussion on the nature of misconduct committed by thesecond respondent. Therefore the writ petition stands allowedand 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. Themiscellaneous petitions stand closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.svkiToThe Presiding Officer, Labour Court, Salem.+ 1 CC to Mr.T.Chandrasekaran,Advocate,SR.NO.3516W.P.No.15538 of 1998VSV(CO)EM/9.2.09