CoramThe Honourable Mr v. The Chief Inspector of Factories

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 30-3-2007CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.7956 of 1998B & C Mills,Unit of Binny Limited,65, Armenian Street,Chennai - 600 001....PetitionerVs.1.The Chief Inspector of Factories,Chennai - 600 005.2.P. Madhavan...RespondentsPrayer:Writ petition filed under Article 226 of Constitution ofIndia, praying this Court to issue a writ of certiorari to callfor the records of the first respondent in appeal No.1/98, andquash his order dated 21.5.1998.For Petitioner:Mr.Johnfor Mr.T.S.Gopalan & CO.For 1st Respondent:Mr.P.SubramanianGovernment AdvocateFor 2nd Respondent:Mr.T.P.KathiravanO R D E RPetitioner seeks to quash the order of the first respondentdated 21.5.1998 setting aside the dismissal of the secondrespondent from service.2.Brief facts necessary for disposal of the writ petitionare as follows.(i)The petitioner Textile Mill employed 4159 workmen, 202staff, 4 Welfare Officers apart from an Industrial RelationsOfficer and an Industrial Relations Manager in the factory. Secondrespondent was working as Welfare Officer in the Mill. DuringJune, 1996, when the petitioner mill was not functioning due to the https://hcservices.ecourts.gov.in/hcservices/ damage caused by severe rains, the Officers were attending variousjobs connected with salvaging operations of the Mill. The Officersof the Industrial relations Department were attending to variouslabour related issues like supply of rations, payment to theemployees in terms of Government Order, etc.(ii)It is stated in the affidavit in support of the writpetition that on 26.2.1997 one D.Balasubramaniam, management staffGrade-VIII, attached to Industrial Relations department was talkingto one Kesavankutty, Administrative Officer in his room situated inthe Industrial Relations Office. The said Balasubramaniam wasexpressing his grievance that he was working under tremendouspressure in the wake of difficult situation faced in the Mill. Thesaid Kesavankutty was advising Balasubramaniam that in spite of thegrave situation, the officers should raise to the occasion in acalm manner and attend to all the duties. The second respondentherein, who came to the office at that time, misunderstood thecomments of the said Balasubramaniam as if it was uttered againsthim. Thus, the second respondent got enraged and said to haveabused Balasubramaniam in filthy language. The second respondentalso removed one of his chappals and tried to assault the saidBalasubramaniam. One A.Ravindran, Senior Officer, IndustrialRelations, along with the said Kesavankutty intervened andprevented the second respondent from assaulting the saidBalasubramaniam.(iii) In respect of the said misconduct committed by thesecond respondent on 26.2.1997, a show cause notice was issued on14.3.1997 and he was also placed under suspension pending enquiry.Second respondent submitted explanation on 17.3.1997 and deniedthe charges. The said explanation having been found notsatisfactory, a domestic enquiry was directed to be conducted by aretired District and Sessions Judge. The petitioner and the secondrespondent through their legal practitioners, attended the enquiry.Second respondent's counsel elaborately cross-examined the fourwitnesses cited on the side of the petitioner and the secondrespondent examined 8 witnesses on behalf of him and number ofdocuments were also marked as exhibits on both sides.(iv)The Enquiry Officer submitted his findings on 20.8.1997holding that the charges are proved. Petitioner managementaccepted the findings of the Enquiry Officer and dismissed thesecond respondent from service by order dated 2.9.1997 afterissuing show cause notice on 28.8.1997 and getting his reply.(v)Second respondent preferred appeal before the firstrespondent under rule 6(2) of the Tamil Nadu Factories (WelfareOfficers) Rules, 1953. The first respondent, considering theunblemished record of service of the second respondent for about 12years, interfered with the punishment and allowed the appeal on21.5.1998 and set aside the order of dismissal.(vi)The said order is challenged in this writ petition by thepetitioner management on the ground that merely on the basis of the https://hcservices.ecourts.gov.in/hcservices/ reliance on the past record of service, a lenient view could nothave been taken in favour of the second respondent, particularlywhen the charges are proved and the Mill is not functioning from15.6.1996 and the employees have also left the service of thepetitioner Mill accepting voluntary retirement scheme. It isfurther stated that there is no scope for engaging the secondrespondent as Welfare Officer pursuant to the impugned order as theMill is closed.3.Counter affidavit is filed by the second respondent,wherein it is stated that the petitioner was appointed as LabourWelfare Officer on 29.4.1985 by the petitioner management and hewas having 12 years of meritorious service in the petitioner Mill.In the year 1991 he was transferred to Materials department asmanagement staff from the post of Labour Welfare Officer. and thesaid transfer order was challenged in W.P.NO.5133 of 1991 beforethis Court. The said writ petition was dismissed by this Court.The appeal filed against the said order in W.A.No.1353 of 1991 wasallowed on 21.1.1992 and the SLP 15420 of 1992 preferred before theHonourable Supreme Court by the petitioner management was dismissedon 11.12.1992. Thereafter second respondent was given the post ofLabour Welfare Officer in the year 1992, but he was deniedbackwages. Therefore second respondent initiated contemptproceeding against the petitoner Mill in Contempt ApplicationNo.100 of 1993, pursuant to which backwages were paid by themanagement. In view of series of litigations including theinitiation of contempt proceeding by the second respondent, themanagement took vindictive attitude against the second respondentand created records in the name of misconduct. Second respondentsent a complaint before the Deputy Chief Inspector of Factories,Chennai-5 for violation of section 6(2) of the Tamil Nadu Factories(Welfare Officer) Rules, for non payment of medical claim andillegal deduction of ESI benefits and the Deputy Chief Inspector ofFactories by order dated 19.4.1993 gave a direction to thepetitioner Mill to comply with the demand. On 31.8.1996, secondrespondent again sent a complaint to the Chief Inspector ofFactories about the attempt made by the management for appointingthe said D.Balasubramaniam as Labour Welfare Officer, withoutcomplying with the statutory requirements. Therefore, themanagement got prejudiced against the second respondent and inducedthe said D.Balasubramaniam and one Kesavankutty to create recordsas if the second respondent used unparliamentary words against thesaid D.Balasubramaniam on 26.2.1997 at 8.00 a.m. The show causenotice for the said allegation was issued only on 14.3.1997 withoutconducting any preliminary enquiry as contemplated under clause 15(a) of the standing orders. It is further stated in the counteraffidavit that the enquiry Officer failed to conduct enquiry in afair and proper manner even though second respondent requested toissue summons to the Deputy Superintendent of Police on deputationto the B&C Mill acting as Vigilance/Security Officer. The Enquiry https://hcservices.ecourts.gov.in/hcservices/ Officer failed to take any steps to produce him as witness. It isfurther stated in the counter affidavit that the management witnessNo.3 viz., A.Ravindran, Assistant Industrial Relation Officer camefor duty only at 8.05 a.m. as per the attendance register, whocould not have seen the incident said to have taken place at 8.00a.m. The Welfare Officer was not summoned as independent witnessas per Rule 7(a) and he was returned by the Enquiry Officer withouttaking his evidence either in favour of the second respondent or infavour of the management. Therefore the second respondent in thecounter affidavit contends that the Enquiry Officer's findings isperverse and on the basis of which the order of dismissal waspassed, which was rightly set aside by the first respondentparticularly taking note of the proportionality of the punishment.4.The learned counsel for the petitioner Mill argued thatthe second respondent having been charged for using abusive wordsagainst one D.Balasubramaniam and the management staff Grade-VIII,while he was talking to one Kesavankutty and having removed one ofhis chappals and attempted to hit the said D.Balasubrmaniam, aregular enquiry was conducted, wherein it was proved and the firstrespondent ought not to have interfered with the punishment imposedsolely on the basis that the second respondent's past record waswithout blemish. 5.The learned counsel for the second respondent submittedthat the second respondent was victimised since he has challengedthe order of transfer by filing writ petition and after the samehaving been allowed, the writ petitioner management filed SLP andeven after the dismissal of the SLP, salary was not paid, forwhich he filed contempt application and thereafter only secondrespondent was paid backwages and therefore the motive to punishthe second respondent is clearly established. The learned counselfurther submitted that the alleged attempt to appoint the saidD.Balasubramaniam as Labour Welfare Officer was objected by thesecond respondent by sending representation to the then Inspectorof Factories and the said Balasubramaniam was used as a tool togive complaint against the second respondent as if the secondrespondent abused and attempted to slap him. The learned counselalso submitted that under the standing order, while imposingpunishment the Mill management shall take into account the gravityof the misconduct, the previous record, if any of the employee andany other extenuating or aggrevated circumstances that may exist.6.I have considered the rival submissions made by thepetitioner as well as the second respondent and perused thedismissal order, order of the first respondent and also the pastlitigations between the second respondent and the petitioner Mill. https://hcservices.ecourts.gov.in/hcservices/

7.The manner in which the second respondent was dealt withby the petitioner Mill is elaborately considered by a DivisionBench of this Court in the decision reported in 1992 (1) LLN 574(P.Madhavan v. Binny Ltd.), wherein the second respondentstransfer order was set aside. It is not in dispute that an attemptwas made by the petitioner Mill to promote the said Balasubramaniamas Labour Welfare Officer, who is not qualified. The objectionraised by the second respondent before the Inspector of Factoriesis also not denied. In such circumstances, there is an element ofmotive to create complaint against the second respondent at theinstance of the said Balasubramaniam.8.As rightly contended by the learned counsel for thesecond respondent, there is no independent evidence to show thatthe petitioner indulged in the alleged delinquency, except theevidence of the said Balasubramaniam. The attendence register on26.2.1997 discloses the fact that one A.Ravindran, AssistantIndustrial Relation Officer, MW-3 came to the office only at 8.05a.m. and therefore he had no chance to witness the alleged incidentsaid to have taken place at 8.00 a.m. Even assuming that theallegation against the second respondent is proved, as rightly heldby the first respondent, the second respondent's past servicerecords should have been given due consideration and a lenientpunishment could have been imposed in terms of the standing orderof the petitioner Mill. Even though there is a reference about thepast conduct in the order of dismissal, non-appreciation of theunblemished record of service of 12 years is a serious matter andtaking note of the same, first respondent interfered with thepunishment and the same cannot be treated as perverse findingwarranting interference in writ jurisdiction.9.It is well settled in law that when two views arepossible, if a statutory authority has taken one view, the writCourt sitting under Article 226 of the Constitution of India,cannot upset the said finding and take a different view. Since Ifind there is no perversity in the decision of the firstrespondent, I hold that there is no merit in the writ petition andthe writ petition is liable to be dismissed.10.The learned counsel for the petitioner submitted that theMill is closed from 15.6.1996 and there is no textile activitycarried on in the Mill and only 39 workers are employed in theCompany, of which two are securities, three are drivers and theremaining are doing security work looking after the lands of thepetitioner Mill. There are only five officers presently employedby the petitioner Mill. Second respondent was employed as WelfareOfficer. Under the Factories Act, for every 500 workemen, thereshall be one Welfare Officer. When only 39 workers are there inthe petitioner Mill and there is no manufacturing activity carried https://hcservices.ecourts.gov.in/hcservices/ on after closure of the Mill, there is no need for engaging WelfareOfficr at this point of time. 11.Taking into consideration the above said averments madeby the petitioner Mill through additional affidavit filed inFebruary, 2007, I am of the view that the second respondent is notentitled to be reinstated. However, having regard to the settingaside of dismissal order passed by the first respondent, secondrespondent shall be given voluntary retirement as it was given toall other employees in the petitioner Mill, with all attendantbenefits. 12.The writ petition is dismissed with the above directions.No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vrToThe Chief Inspector of Factories, Chennai - 600 005.1 cc to M/s. T.S. Gopalan, Advocate, sr,. 20827W.P.No.7956 of 1998 HRK (CO)kk 10/5