N. Balakrishnan v. The Management Pandiyan Roadways Corporation Ltd., Bye-pass Road Madurai 16...1st

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:22.03.2006CORAM:THE HON'BLE MR. JUSTICE P. SATHASIVAMANDTHE HON'BLE MR. JUSTICE J.A.K. SAMPATHKUMARWRIT APPEAL NO.2702 of 1999N. Balakrishnan.. Appellant/2nd Respondentvs.1. The Management Pandiyan Roadways Corporation Ltd., Bye-pass Road Madurai 16...1st Respondent/Petitioner2. The Presiding Officer Industrial Tribunal City Civil Court Building Chennai 600 104...2nd Respondents/1st RespondentWrit Appeal filed under Clause 15 of the Letters Patentagainst the order of the learned single Judge dated 08.10.1999 madein Writ Petition No.1485 of 1990 Writ Petition filed under Article226 of the Constitution of India, praying that in the circumstancesstated therein and in the affidavit filed therewith the High Courtwill be pleased to issue writ of certiorari calling for the recordson the file of the 1st Respondent in Petition No.68 of 1986 inI.D.No.62 of 1982 and quash the order passed therein dated19.4.1989.For appellant : Mr. K.M. RameshFor respondents: Mr. L.G. Sahadevan for R.1.. JUDGMENT(Judgment of the Court was delivered by P. SATHASIVAM,J.)Aggrieved by the order of the learned single Judge dated08.10.1999 made in Writ Petition No.1485 of 1990, N.Balakrishnan, second respondent therein has filed the above writappeal. https://hcservices.ecourts.gov.in/hcservices/

2. For convenience, we shall refer the parties as arrayedin the writ petition.3. The appellant herein is the second respondent in thewrit petition. He was employed as a Helper in the petitionerManagement/Transport Corporation at Kumuli Depot. According to theManagement, on 03.11.1985, he went to the depot at midnight andafter receiving the bonus amount due to him from the cashier, heslept in the officer room. After the cashier left the room, heopened the room with the keys and then opened the iron safe andremoved Rs.37,086.05 and left the premises. A criminal complaintwas lodged against the second respondent. The criminal case wastaken as Case No.75 of 1986. On the basis of the report, a chargememo was issued to the second respondent on 13.11.1985. He wascharged for having removed Rs.37,086.05 and violated the StandingOrder by entering the Kumuli depot during night time, removing thesaid sum and not subjecting himself to security check. Hesubmitted an explanation denying the charges. The management, notbeing satisfied with the explanation submitted by the secondrespondent, ordered domestic enquiry, in which he took part. TheEnquiry Officer, submitted his report finding that the secondrespondent is guilty of the charges. The Management concurred withthe findings of the Enquiry Officer and considering the gravity ofthe misconduct committed by him, decided to terminate the secondrespondent from service. 4. In terms of the Standing Orders, a second show cause noticewas issued on 08.05.1986, directing him to show cause as to why heshould not be removed from service. The second respondentsubmitted his reply on 18.05.1986. Ultimately, the Management, byorder dated 16.06.1986, dismissed him from service. Since thedisputes relating to all workmen with the petitioner TransportCorporation are pending before the Industrial Tribunal in I.A.No.62of 1982, the petitioner, in compliance with the provisions ofSection 33(2)(b) of the Industrial Disputes Act, filed anapplication for approval of the order of dismissal, which wasnumbered as Petition No.68 of 1986 in I.D.No.62 of 1982 on the fileof first respondent/Industrial Tribunal, Chennai. After hearingboth sides, the first respondent/ Tribunal dismissed the petitionfiled by the Management refusing to grant approval on the soleground that the Management had violated Section 17(5) of theStanding Orders of the Corporation, which requires the managementto take into account the past record before passing the order ofdismissal. Aggrieved by the aforesaid order, the TransportCorporation has filed Writ Petition No.1485 of 1990. By orderdated 08.10.1999, the learned Judge accepted the stand taken by theManagement and set aside the order of the Tribunal and allowed thewrit petition. Questioning the same, the second respondent thereinfiled the present writ appeal. https://hcservices.ecourts.gov.in/hcservices/

5. Heard Mr. K.M. Ramesh, learned counsel for the appellantand Mr. L.G. Sahadevan, learned counsel for the first respondentManagement.6.The only point for consideration in this appeal is, whetherthe petitioner Management is justified in passing the order ofdismissal without taking into consideration the past record ofservice as required in Clause 17(5) of the Standing Orders?7. Mr. K.M. Ramesh, learned counsel appearing for the secondrespondent/appellant, by drawing our attention to clause 17(5) ofthe Standing Orders of the Corporation, contended that beforepassing an order imposing punishment, the employer has to take intoaccount the gravity of the misconduct, previous record of theworkman and other extenuating or aggravating circumstances. Healso contended that as per Section 33(2) of the Industrial DisputesAct, 1947 (in short "I.D. Act"), it is mandatory on the part ofthe Management to consider the Standing Orders before imposing anypunishment on the employees. Though the workman/appellant hereinquestioned the enquiry as well as the findings of the EnquiryOfficer, the fact remains that he participated in the enquiry andalso cross-examined the witnesses adduced on the side of theManagement. In such circumstances, it is unnecessary for us to gointo the validity of the enquiry and the ultimate conclusionarrived at by the Enquiry Officer. 8. It is further seen that on receipt of the report of theEnquiry Officer, the Management issued a second show cause noticedated 08.05.1986 informing that a punishment of dismissal is to beimposed on him and required him to offer explanation, if any,within 24 hours and the workman submitted his explanation on18.05.1986. Not satisfied with the explanation, the Managementpassed the order on 18.06.1986 dismissing him from service.9. Now, let us consider the Standing Orders applicable to thecase on hand. Clause 17(5) of the Standing Orders reads asfollows:"In awarding the punishment under this StandingOrder the employer shall take into account thegravity of the misconduct, the previous recordof the workman and any other extenuation oraggravating circumstances that may exist. "A reading of the above clause 17(5) of the Standing Orders makes itclear that it is incumbent on the part of the Management, whileawarding punishment, to take into account (a) gravity ofmisconduct; (b) previous record of the workman; and (c) other https://hcservices.ecourts.gov.in/hcservices/ extenuating or aggravating circumstances. It is not in disputethat at the relevant time, the disputes relating to all workmenwith the petitioner Corporation were pending before the IndustrialTribunal in I.D.No.62 of 1982. Hence, in compliance with theprovisions of Section 33(2)(b) of the I.D. Act, the petitionerTransport Corporation filed an application before the IndustrialTribunal for the approval of the order of dismissal. Inasmuch as aduty is cast on the employer to comply with the clause 17(5) of theStanding Orders, it is proper on the part of the employer to takeinto account the previous record of the workman. It is thedefinite case of the workman that he had clean records and had theManagement considered the same while imposing punishment, therewould not have been any capital punishment, such as dismissal fromservice, as ordered in this case.10. In 1994 (2) LLN 607 (A.R.C. Engineering Works vs.Somarajan), a Division Bench of this Court has held that wherethere is a provision in the Standing Orders for consideration ofthe past record, it is incumbent on the part of the Management toadhere to the same. The following conclusion is relevant:"5. On the second point Sri M.R. Narayanaswamy,learned counsel for the appellant, submits thatthe management having looked into the pastrecord of service, it cannot be held that rule17(5) had not been complied with. Sri FennWalter, learned counsel for the workmen,submits that a bald recital in the orderissued, that the past record of service hadbeen looked into cannot be treated as asubstantial compliance as held in Writ PetitionNo.383 of 1977, and that when more than oneworkmen are involved, each one of them shouldhave been told as to what past record ofservice had been taken into account, so thatwhen the Labour Court exercises its powersunder S.11A it could test whether thepunishment imposed, on each one of them, isjustified or not. In respect of each one ofthe seventeen workmen, the same words have beenused, dealing with consideration of past recordof service. Nothing preclude the management tosupply an annexure listing out as to what werethe punishments, which have been taken intoaccount. Unless the relevant particulars areincorporated as part of the order it woulddisentitle the Labour Court, to preciselydetermine under S.11A as to how far all of themcould be treated alike. In Writ Petition https://hcservices.ecourts.gov.in/hcservices/ No.383 of 1977, factually it was found that thepast record had been taken into account. Inthe instant matter, as to what are theparticulars which have been taken into accountnot being known, a generalised statement, wouldnot come within the ambit of the doctrine of"substantial compliance". Now that the LabourCourt has to exercise its powers under S.11Aand as pointed out by the Supreme Court inLaxmiratan Cotton Mills vs. Workmen (1975-IIL.L.N. 32) at the stage of the second show-cause notice, the past record of workmen wouldbe a relevant factor. Therefore, themanagement is obliged to place before theLabour Court as to what are the particulars ofthe past record which it had taken into accountin respect of each one of the workmen. Hencerule 17(5) had not been complied with by themanagement in the manner in which it isexpected to do, by furnishing full details ofthe record of service it had taken intoaccount. ......"11. In 1997(1) LLJ 698 (Management of Easun ltd., v. Addl.Labour Court & Another) this Court has held that while consideringthe past record of the workman for the purpose of imposing extremepenalty, the worker is entitled to notice and for non-compliance,this Court is fully justified in interfering with the same underArticle 226 of the Constitution of India. The conclusion of theirLordships in para 7 is relevant:"7. Therefore, on the second question argued byMr. Balasubramanian, we have no hesitation inholding that in this case, the past record ofservice having been taken into account only forthe purpose of imposing the extreme penalty,the order of punishment is vitiated because nonotice was given to the worker before takinginto account the past record of service to theprejudice of the worker. This is a legalinfirmity in the order of dismissal as well asin the award of the Labour Court. This legalinfirmity is sufficient to interfere with thejudgment of the Labour Court in proceedingsunder Article 226 of the Constitution of India..... "12. In 2002 (2) SCC 244 (Jasipur Zila Sahakari Bhoomi VikasBank Ltd., vs. Ram Gopal Sharma), the Constitution Bench of the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court has held that the compliance of Section 33 of I.D.Act is mandatory and the following conclusion is relevant:"13. The proviso to Section 33 (2)(b), as canbe seen from its very unambiguous and clearlanguage, is mandatory. This apart, from theobject of Section 33 and in the context of theproviso to Section 33(2)(b), it is obvious thatthe conditions contained in the said provisoare to be essentially complied with. Further,any employer who contravenes the provisions ofSection 33 invites a punishment under Section31(1) with imprisonment for a term which mayextend to six months or with fine which mayextend to Rs.1000 or with both. This penalprovision is again a pointer of the mandatorynature of the proviso to comply with theconditions stated therein. To put it inanother way, the said conditions beingmandatory, are to be satisfied if an order ofdischarge or dismissal passed under Section 33(2)(b) is to be operative. ....."13. The Industrial Tribunal, after finding that though secondopportunity was given, but the past record was not consideredbefore imposing punishment and the same is in violation of clause17(5) of the Standing Orders which is mandatory in nature, arrivedat a conclusion that the order of dismissal is not sustainable,refused to grant approval for the same. The conclusion of theIndustrial Tribunal is in consonance with the statutory provisions,as interpreted in the above decisions. 14. Unfortunately, the learned Judge while accepting the caseof Management, committed two errors. The first one is that heproceeded that the charge levelled against the workman relates tomisappropriation. It is not in dispute that based on thecomplaint of the Management, prosecution was launched against theworkmen for the offence of theft, which also ended in acquittal inC.C.No.75 of 1986 on the file of Judicial Magistrate, Uthamapalyamdated 14.10.1987. Secondly, the learned Judge committed an errorin holding that when an employee is involved in the case ofmisappropriation of funds, no lesser punishment than the dismissalfrom service can be imposed. However, according to the learnedJudge when a major punishment is to be imposed depending upon thenature or gravity of the offence, then the factors mentioned inclause 17(5) of the Standing Orders have some relevance. https://hcservices.ecourts.gov.in/hcservices/

15. It is also brought to our notice that pursuant to theorder of the Tribunal dated 19.12.1989, the workman was allowed towork in the petitioner Transport Corporation and he continued tillJune, 2004 with unblemished records. In view of the language usedin Clause 17(5) of the Standing Orders and that of Section 33 (2)(b) of the I.D. Act, we are unable to accept the view expressed bythe learned Judge. On the other hand, we hold that in view of thefact that at the relevant time, the dispute relating to workmenwith the petitioner Corporation was pending before the IndustrialTribunal and in the light of the language used in Section 33(2)(b)of the I.D. Act, which is held to be mandatory, themanagement/employer is bound to take into account the previousrecord of the employee as per the Standing Orders. Under these circumstances, the order of the learned Judgedated 18.10.1999 made in W.P.No.1485 of 1990, is set aside and thewrit appeal is allowed. No costs. kh 22.03.2006Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Presiding Officer,Industrial TribunalCity Civil Court Building,Chennai-104.2. The Record Keeper,VR Section,High Court, Madras-104.3. The Section OfficerWrit Section,High Court, Madras-104.1 cc to Mr.K.M.Ramesh, Advocate, SR.14098/061 cc to Mr.L.G.Sahadevan, Advocate, SR.14398/06tm (co)dv/3.4.06 W.A.No.2702 of 1999