CoramThe Honourable Mr v. The Presiding Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 21-8-2006CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.8380 of 1998The Management of Madura Cement Pvt Ltd,E.9 – SIPCOT Complex,Manamadurai...PetitionerVs.1.The Presiding Officer,Principal Labour Court,Madurai.2.S.Viswalingam3.J.Jayakumar4.K.Chandran5.V.Diravidaselvan6.P.Nagalingam7.G.Selvaraj8.K.Murugan9.M.Sirajudeen10.V.C.Subramanian11.P.Cholaimuthu12.V.Krishnamurthy13.P.Poovalingam14.S.Arul15.S.Guruswami16.M.Soundararajan17.A.Alexander...RespondentsWrit petition filed under Article 226 of Constitution of Indiapraying this Court to issue a writ of Certiorari calling for therecords from the file of the first respondent in I.D.Nos.409, 412.415, 417, 418, 419, 420, 421, 422, 423, 425, 426, 427, 438 and 439of 1990 and quash the common award dated 31st December 1996 andpublished in Part II, Section 2 of Gazette (Labour and EmploymentDepartment) dated 2nd July, 1997 and issue further directions.For Petitioner :Mr.S.Jayaraman1st Respondent :CourtFor Respondents 2to17:Mr.K.Elango https://hcservices.ecourts.gov.in/hcservices/ O R D E RPetitioner seeks to quash the common award of the firstrespondent made in I.D.Nos.409, 412, 415, 417, 418, 419, 420, 421,422, 423, 425, 426, 427, 438 and 439 of 1990 dated 31.12.1996.2.Brief facts necessary for disposal of the writ petitionare as follows.(i)Petitioner is running a Mini Cement Plant at Manamaduraisince October, 1977, and having more than 50 workers on its roll.Petitioner has been declared as a Sick Industrial Undertaking underthe Sick Industrial Undertaking (Special Provisions) Act, 1985 andproceedings are pending before the BIFR in case No.106 of 1997.The Industrial Development Bank of India has been appointed asOperating Agency by the BIFR in its proceedings dated 10.10.1997and directed the Operating Agency to come forward withrehabilitation proposals. There are five units in the PetitionerCompany and members of one of its Unit viz., CITU are concernedworkmen in the above industrial disputes. (ii)According to the petitioner, the factory is situated inSIPCOT complex and is not a public place. There is a leaseagreement between the petitioner Management and the SIPCOT, enteredinto lease agreement and as per the terms of the said agreement thecost of roads, drainage, street, lighting, etc., shall be borne bythe petitioner along with the other companies. Thus, all the roadsinside the complex are under the joint control and use of theoccupants of the Complex, which clearly shows that the petitionerManagement has also got right and interest over the roads insidethe complex.(iii)On 14.5.1989 the workmen concerned herein in concertwith the other employees assaulted a company worker belonging tothe petitioner, who was on his way from the Company. When thevictim ran towards the canteen, which was also on lease with thepetitioner Company, the concerned Workman chased him and peltedstones and assaulted him. Some of the glass panes of the doors andwindows of the canteen were broken. The assaulted victim gavecomplaint to the Police and took medical treatment for the injuriessustained by him. A complaint dated 14.5.1989 was received fromone Petchimuthu Pandian narrating the facts. (iv)Petitioner Management issued charge memo dated 22.5.1989to all the workers individually narrating the entire incident andalso charged them for the misconducts committed by them and theworkmen submitted their explanation on 29.5.1989. Since theexplanations were not found satisfactory, the management conducted https://hcservices.ecourts.gov.in/hcservices/ domestic enquiry and some of the workmen were allowed theassistance of co-worker. Some of the workmen refused toparticipate in the domestic enquiry and exparte enquiry wasconducted against them. The workmen concerned in I.D.No.412 of1990 - Chandran, I.D.No.413 of 1990 – Mr.Dravida Selvan andI.D.No.418 of 1990 – Selvaraj were set exparte in the domesticenquiry since they failed to appear.(v)The Enquiry Officer submitted his report and gave afinding that the charges are proved. The seriousness andmisconduct of the workmen were considered and after serving a showcause notice and receiving explanation, punishment of dismissal wasimposed against the workmen. The dismissal order was passed on16.1.1990 for the proved misconduct. Aggrieved by the above saidorders of dismissal the workmen raised industrial disputes undersection 2A of the Industrial Disputes Act, 1947, which were takenon file as I.D.Nos.409, 412. 415, 417, 418, 419, 420, 421, 422,423, 425, 426, 427, 438 and 439 of 1990. Since the issue wascommon, the disputes were commonly tried and common award waspassed.(vi)The workmen contended that the charge framed against themdo not fall within the purview of Clause 16(j) of the ModelStanding Order and therefore the proceedings initiated and thedismissal order are illegal and unlawful and prayed forreinstatement with backwages. The Management resisted the saidclaim contending that the workmen assaulted the workmen belongingto the Union while they were coming from the factory and that theyalso pelted stones at them and also broke the Glass panes in thewindows and doors of the canteen and their conduct is clearly inviolation of section 16(j) of the Standing Orders. The LabourCourt found that the alleged misconduct will not come under therelevant clause of the Standing order and directed to reinstate theworkmen with 50% backwages and continuity of service. The saidcommon award is challenged in this writ petition.3.The learned counsel for the petitioner/Management arguedthat since the occurrence had happened within the vicinity of thePetitioner Company and it is a common area, violation of ModelStanding Order is attracted and therefore the Labour Court is notjustified in holding that the alleged incident occurred at a longdistance from the petitioner Company and there is no violation ofstanding order of the Petitioner Company, and that the said findingis contrary to the decisions of the Honourable Supreme Court as theoccurrence had happened in the vicinity of the Petitioner Company.Therefore according to the learned counsel, the order of theTribunal is liable to be set aside. The learned counsel also citedthe decisions reported in 1975 (2) LLJ 379 (Cooper Engineering Ltdv. P.P.Mundhe); 1975 (1) LLJ 391 (Munchandani Electrical and Radio https://hcservices.ecourts.gov.in/hcservices/ Industries Ltd., v. Their Workmen) and 1984 (1) LLN 934 (Glaxo Lab(I) Ltd. v. Labour Court, Meerut & Others) in support of hiscontentions.4.The learned counsel for the Workmen contended that Clause16(j) of the Model Standing Order is very clear which says,"Drunkenness, Ritiousness and disorderlybehaviour during working hours, in the premisesof the Industrial Establishment or any actsubversive of discipline".and even according to the charge, the alleged incident had nottaken place not within the premises of the establishment andtherefore even if the Labour Court is justified in setting asidethe dismissal order and ordering reinstatement with 50% backwagesand continuity of service. In support of his contention, thelearned counsel relied on the decisions reported in 1984 (1) LLN934 (Glaxo Lab (I) Ltd. v. Labour Court, Meerut & Others) and 2001(1) LLN 1547 (Jeeva Transport Corporation Ltd., v. Labour Court,Salem and another).5.I have considered the rival submissions made by thelearned counsel appearing for the petitioner/Management as well asrespondents/Workmen. To attract clause 16(j) of the Model Standingorder, which is extracted above, there should be disorderlybehaviour or drunkenness during the working hours.6.(a)The Honourable Supreme Court in the decisionreported in 1984 (1) LLN 934 (Glaxo Lab (I) Ltd. v. Labour Court,Meerut & Others)in para 11 held thus,"... Therefore, keeping in view the largerobjective sought to be achieved by prescribingconditions of employment in certified standingorders, the only construction one can put oncl.10 is that the various acts of misconducttherein set out would be misconduct for thepurpose of S.O.22 punishable under S.O.23, ifcommitted within the premises of theestablishment or in the vicinity thereof. Whatconstitutes establishment or its vicinity woulddepend upon the facts and circumstances of eachcase."Again in para 20, the Honourable Supreme Court held as follows,"It is therefore, obligatory upon the employerto draw up with precision those acts of omissionand commission which in his industrial https://hcservices.ecourts.gov.in/hcservices/ establishment would constitute misconduct.Penalty is imposed for misconduct. The workmenmust therefore, know in advance which act oromission would constitute misconduct as to bevisited with penalty. The statutory obligationis to prescribe with precision in the standingorder all those acts of omission or commissionwhich would constitute misconduct. In the faceof the statutory provision it would be difficultto entertain the submission that some other actor omission which may be misconduct though notprovided for in the standing order would bepunishable under standing order 23. Upon aharmonious construction, the expression'misconduct' in S.O.23 must refer to those actsof omission or commission which constitutemisconduct as enumerated in standing order 22and none else. ... "(b)The said position is followed in the decision of thisCourt reported in 2001 (1) LLN 1547 (Jeeva Transport CorporationLtd. v. Labour Court, Salem and another), wherein in paragraphs 6and 7 it is held thus,"6.In such circumstances the questionremained as to whether the punishment imposedby the petitioner can be held to be validlymade. In this context, a Division Benchjudgment of our High Court J. Dhanaraj v. TamilNadu Electricity Board and others reported in1995-I-LLJ-931 (Mad-DB) can be usefullyreferred to wherein the judgment of the Hon'bleSupreme Court reported in 1984(1) LLN wasrelied upon. The relevant passage of thejudgment of the Hon'ble Supreme Court referredto read as under at p.934 of LLJ:"5 ......... In short, it cannot beleft to the vagaries of management to sayex post facto that some acts of omissionor commission nowhere found to beenumerated in the relevant Standing Orderis nonetheless a misconduct not strictlyfalling within the enumerated misconductin the relevant Standing Order but yet amisconduct for the purpose of imposing apenalty. Accordingly, the contention ofSri Shanti Bhushan that some other act ofmisconduct which would per se be an act ofmisconduct though not enumerated inStanding Order 22 can be punished under https://hcservices.ecourts.gov.in/hcservices/ Standing Order 23 must be rejected."7.Applying the above stated principles,the Division Bench was pleased to quash thevery charge-memo issued to the petitioner inthat case. In the case on hand, the chargelevelled against the second respondent wasunder Clause 15(c) of the Model StandingOrders. A reading of the said clause disclosesthat the same would not fit into theallegations levelled against the secondrespondent. Even assuming that the conduct ofthe second respondent could be brought withinthe fold of Clause 15(x), having regard to theCriminal Court verdict under Exhibit W-3, thereis no scope for sustaining the action of thepetitioner against the second respondentherein. As the very basis for initiation ofthe disciplinary action against the secondrespondent has o nexus to stand, there is noscope for interfering with the award impugnedin this writ petition. ... "7.In view of the above cited decisions of the HonourableSupreme Court as well as this Court, the workmen in this casecannot be proceeded for the alleged violation of Clause 16(j) ofthe Standing Order, which is very specific that the delinquencyshould be during the working hours, in the premises of theIndustrial Establishment. Therefore the finding given by theLabour Court that the workmen herein cannot be proceeded for thealleged violation of the Standing Order and the ultimate decisionof setting aside the punishment of dismissal and reinstatement with50% backwages and continuity of service, cannot at all beinterfered with. I hold that there is no perversity in the saiddecision and the same is in consonance with the decision of theHonourable Supreme Court and that of this Court, referred above.8.In the result, the common award dated 31.12.1996 passedby the Labour Court/first respondent herein is hereby confirmed andthe writ petition is dismissed. No costs. vrSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding Officer, Principal Labour Court, Madurai.+ 1 cc to Mr. S. Jayaraman, Advocate SR No. 37326+ 1 cc to Mr. K. Elango, Advocate SR No. 37616NG(CO)SR/5.9.2006 Order in W.P.No.8380 of 1998