The Management of Tamil NaduNewsprint and Paper Mills,Kagithapuram,Pugalur-639117 v. The Workmen of Tamil Nadu Newsprint and Paper Mills

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 5.3.2008CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.R.SINGHARAVELUWrit Appeals No.838 of 2000 and 335 of 2001W.A.No.838 of 2000:The Management of Tamil NaduNewsprint and Paper Mills,Kagithapuram,Pugalur-639117.... Appellant/2nd respondent in WP.247/91 on the file of this court.Vs.1.The Workmen of Tamil Nadu Newsprint and Paper Mills, rep.by the Secretary, Tamil Nadu Newsprint and Paper Mills Thozhilalar Sangam, Kaghithapuram, Pugalur, Tiruchy District.2.The Principal Labour Court, Madurai... Respondents(Petitioners and first respondent in-do)W.A.No.335 of 2001:The Workmen of Tamil NaduNewsprint and Paper Mills,Pugalur, rep.by the Secretary,Tamil Nadu Newsprint andPaper Mills Thozhilalar Sangam,Kagithapuram, Pugalur, Trichy District... AppellantVs.1.The Principal Labour Court, Madurai.2.The Management of Tamil Nadu Newsprint and Paper Mills, Kagithapuram, Pugalur-639117.... Respondents https://hcservices.ecourts.gov.in/hcservices/ * * *Writ Appeals filed under Clause 15 of the Letters Patent bothagainst the order of the learned single Judge of this Court dated17.2.2000 made in W.P.No.247 of 1991. Petition presented to this courtunder Article 226 of the constitution of India to issue a writ ofcertiorarified Mandamus and after calling for the concerned recordsrelations to I.D.84/1987 on the file of the first respondent PrincipalLabour Court, Madurai quash his award dated 9.4.90 in I.D.84/1987published in Tamil Nadu Government Gazette part 2 section 2 supplementdated 22.8.90 (Exhibit A) and consequently issue a Mandamus directingthe first respondent to reinstate the worker V. Subramanian in servicewrit backwages, continuity of service and all other attendent benefits.* * *For appellant in: Mr.Sanjay Mohan forW.A.No.838/2000, who: M/s.S.Ramasubramaniamis R2 in WA.335/2001: and Associates For appellant inW.A.No.335/2001, who: Mr.N.G.R.Prasad foris R.1 in WA.838/2000: M/s.Row & Reddy* * *COMMON JUDGMENTELIPE DHARMA RAO, J.Both these appeals are challenging the order passed by the learnedsingle Judge of this Court in W.P.No.247 of 1991, dated 17.2.2000, whileWrit Appeal No.838 of 2000 has been filed by the Management, Writ AppealNo.335 of 2001 is filed by the Workmen Association.2. One V.Subramanian was employed as an Equipment Operator in theManagement. On the allegation that he had assaulted oneR.Kalyanasundaram, server in the TNPL Staff Mess, on 8.12.1984 at about8.00 a.m. and based on the complaint of the said R.Kalyanasundaram, acharge memo. was issued to the said V.Subramanian. Thereupon, havingnot satisfied with the explanation submitted by the delinquent OfficerMr.V.Subramanian, the Management has conducted enquiry, by appointing aretired District Judge as the Enquiry Officer. Before the EnquiryOfficer, the Management has examined four witnesses as M.Ws.1 to 4 andon behalf of the workman, three witnesses were examined as W.Ws.1 to 3.Further, on behalf of the Management, four documents were marked asExs.M.1 to M.4, but no documentary evidence was adduced on behalf of theworkman. The Enquiry Officer, found the delinquent guilty of thecharge, following which the Management has imposed a punishment ofdismissal from service. Aggrieved, an Industrial Dispute was raised bythe workers Association before the Labour Court and since the LabourCourt also found the delinquent guilty of the charges and dismissed the https://hcservices.ecourts.gov.in/hcservices/ industrial dispute, Writ Petition No.247 of 1991 was filed by theWorkmen Association. 3. The learned single Judge, by the order dated 17.2.2000, hasobserved that the Labour Court has not addressed itself to all thequestions and that the matter should be decided by the Labour Court asto whether the assault on Kalyanasundaram by the delinquent wouldattract clause 16(t) of the Model Standing Orders and whether thecanteen can be regarded as a part of the establishment of the Managementand whether Kalayanasundaram can be regarded as a workman of theManagement and what are the relevant provisions of the Standing Ordersthat would be applicable to cover the alleged misconduct of thedelinquent and that the Management in the order of termination has notspecified whether they have taken into account the previous record ofthe workman and what was the nature of the previous record and whetherthere are any extenuating or aggravating circumstances present, beforepassing the order of termination. On such grounds, the learned Judge,while setting aside the Award of the Labour Court, has remitted thematter back to the Labour Court to consider the question as to whetherthe order of termination is justifiable or can be sustained. This orderof the learned single is under challenge by both the Management and theWorkers Union, by way of these writ appeals.4. On the part of the workers Union, it is stated that the learnedsingle Judge having found that as per the order of the Labour Court, thedelinquent employee had merely abused and not assaulted, as alleged,during wordy quarrel with one of the servers in the canteen, ought tohave held that the punishment is excessive and that there was nopleading by the Management that the alleged assault/abuse was inconnection with the employment of the establishment and that the veryfact that the Management had invoked Standing Order 16(t) and in theabsence of any plea by the Management that the incident took place inconnection with the employment, the learned Judge ought to have grantedthe relief as prayed for and in any case, the learned Judge ought tohave held that it is a fit case for a lesser punishment under Section11-A of the I.D.Act and should have directed reinstatement.5. On the part of the Management, they would submit that the learnedJudge failed to realise that the canteen that was run by the Managementwas as a result of a statutory requirement pressed upon the Managementunder Section 46 of the Factories Act and therefore, the canteenpremises would be part of premises belonging to the employer, whereservices were provided by the contractor for the exclusive use ofemployees of the Management and therefore, abuse done in the saidcanteen premises, which is part of the factory of the employer,irrespective of who is abused and why he was assaulted or abused wouldstill be a misconduct which would be actionable under the provisions ofthe Standing Orders; that the Enquiry Officer dealt totally on theaspect of assault and abuse and concluded that indeed an assault and https://hcservices.ecourts.gov.in/hcservices/ abuse of a contractor employee took place in the statutorily requiredcanteen; that the learned Judge ought to have seen that the Labour Courtconcluded that the employee had put in just three years of service andwho had a past record for similar misbehaviour could be inflicted withthe punishment of dismissal for abuse, because it happened in thestatutory canteen premises and therefore, the learned Judge erred insending the matter back again to find out whether the charge of assaulthad been made out.6. As could be seen from the materials placed on record, it is seenthat a charge memo. was issued to the delinquent officer V.Subramanianalleging that he had assaulted one R.Kalyanasundaram, server in the TNPLStaff Mess, on 8.12.1984 at about 8.00 a.m. The Management has pressedinto service Rule 16(t) of the Tamil Nadu Industrial Employment(Standing Orders) Rules, 1947, in support of their action of issuing thesaid charge memo. to the delinquent officer. The said Rule 16(t) readsas follows:"16. Acts and omissions constituting misconduct: - Thefollowing acts and omissions shall be treated as misconduct:(a) to (s) ...(t): threatening, abusing, intimidating or assaulting anyworkman outside the premises of the establishment, if suchthreat, abuse, intimidation or assault is in connection withthe employment in the establishment" (emphasis supplied)7. Thus, to construe misconduct under this Rule, the fundamentalrule must be that the victim must be a workman of the same Managementand the threat, abuse, intimidation or assault should take place outsidethe premises of the establishment, if the same is in connection with theemployment in the establishment. Therefore, the basic rule that needsto be satisfied by the Management to proceeded against any workman isthat the victim is also their workman, within the meaning of theprovisions of the Industrial Disputes Act. Therefore, to decide theentire issue on hand, we are called upon to examine this point, beforeproceeding to deal with other aspects of the case.8. True, the Management is under a statutory obligation in terms ofSection 46 of the Factories Act and the Rules made thereunder tomaintain a canteen for its workers. But, that does not mean that theemployees of the canteen must be the employees of the Management. Inthe case on hand, the specific case of the workers is that the canteenis not being run by the Management and the employees of the canteen arenot the workmen of the Management and therefore, the standing order 16(t) has no application to the facts of the case. 9. To unearth the true, we have gone through the entire materialsplaced on record and from Para No.6 of the counter statement filed bythe Management before the Labour Court and from Para No.9 of thecounter statement filed by the Management before the learned singleJudge, we are able to see that the firm stand of the Management is that'thiru R.Kalayanasundaram, canteen server, was engaged in the factory https://hcservices.ecourts.gov.in/hcservices/ mess/canteen provided by the Management to be used only by workmen andstaff of the Management ... and that the Mess and its premises belongedto the factory/Management and thereby the day-to-day running was done bythe employees and the Management also gave additional facilities such asbuilding, power, fuel etc. to this canteen and it is actually in theprecincts of the factory, the canteen in question is one which thesecond respondent Management is statutorily bound to maintain in termsof the Factories Act and it is open only to the employees of therespondent Management and not to the outsiders and therefore,automatically, the canteen and its running is in connection withemployment of the Management and hence any assault done there would bein connection with the employment by the Management.'10. A whole reading of these two counters filed by the Management,does not reveal that the workers of the canteen are the workers of theManagement. These are cleverly drafted counter affidavits, evadingreply to the specific allegation made by the workers Union that theworkers of the canteen are not the workers of the Management. Furthermore, from ground No.(2) of the grounds of appeal preferred by theManagement in W.A.No.838 of 2000, it is seen that services are providedby a Contractor in the canteen for the exclusive use of employees of theappellant. Therefore, it is clear that the Management is leasing outthe running of the canteen to private contractors and the workersworking in the said canteen are not the workers of the Management. Inthe absence of any assertion by the respondent/management that inaddition to providing infrastructure, to run the mess and canteen, theyare running the canteen and these workmen in the canteen are appointedby the Management, we cannot hold that the workers of the canteen arethe workmen of the Management. 11. In HARI SHANKAR SHARMA vs. ARTIFICIAL LIMBS MANUFACTURINGCORPORATION [(2002) 1 SCC 337], rebutting the similar stand of theManagement, the Honourable Apex Court has held as follows:"The submission of the appellants that because the canteen hadbeen set up pursuant to a statutory obligation under Section 46of the Factories Act, therefore, the employees in the canteenwere the employees of Respondent 1, is unacceptable. First,Respondent 1 has disputed that Section 46 of the Factories Actat all applies to it. Indeed, the High Court has noted thatthis was never the case of the appellants either before theLabour Court or the High Court. Second, assuming that Section46 of the Factories Act was applicable to Respondent 1, itcannot be said as an absolute proposition of law that wheneverin discharge of a statutory mandate, a canteen is set up orother facility is provided by an establishment, the employeesof the canteen or such other facility become the employees ofthat establishment. It would depend on how the obligation isdischarged by the establishment. It may be carried out whollyor substantially by the establishment itself or the burden may https://hcservices.ecourts.gov.in/hcservices/ be delegated to an independent contractor. There is nothing inSection 46 of the Factories Act, nor has any provision of anyother statute been pointed out to us by the appellants, whichprovides for the mode in which the specified establishment mustset up a canteen. Where it is left to the discretion of theestablishment concerned to discharge its obligation of settingup a canteen either by way of direct recruitment or byemployment of a contractor, it cannot be postulated that in thelatter event, the persons working in the canteen would be theemployees of the establishment. Therefore, even assuming thatRespondent 1 is a specified industry within the meaning ofSection 46 of the Factories Act, 1948, this by itself would notlead to the inevitable conclusion that the employees in thecanteen are the employees of Respondent 1."12. The Honourable Supreme Court in STATE OF KARNATAKA AND OTHERSvs. KGSD CANTEEN EMPLOYEES' WELFARE ASSOCIATION [(2006) 1 SCC 567],after discussing earlier decisions of the Supreme Court, including theabove judgment, has observed in paragraph No.32 as follows:"We have referred to the aforementioned decisions in order toshow that in each of the aforementioned cases the industrialadjudicator was required to apply the relevant tests laid downby this Court in the fact situation obtaining therein. Mostof the cases referred to hereinbefore were considered by thisCourt in the peculiar facts and circumstances obtainingtherein and, thus, it is even not proper for the industrialadjudicator to apply the ratio of one decision to theexclusion of other without considering the facts andcircumstances involved therein. The law, however, does notappear to be settled as to whether even in a case where theemployer is required to run and maintain a canteen in terms ofthe provisions of the statute, the employees of the canteenwould automatically be held to be the workers of the principalemployer for all intent and purport and not for the purpose ofthe Factories Act alone. We, however, are not concerned withthe said question in this matter and refrain ourselves frommaking any observation in respect thereof."It is, however, cautioned that:"Most of the cases of Supreme Court having been considered inthe facts and circumstances obtaining therein, it would not beproper for industrial adjudicator to apply ratio of onedecision to the exclusion of another, without considering thefacts and circumstances involved therein."13. Therefore, from the above judgments of the Honourable Apex Courtit is clear that though there is an obligation on the part of theManagement to run a canteen, the employees of the canteen would notautomatically be held to be the workers of the principal employer forall intent and purport and not for the purpose of the Factories Act https://hcservices.ecourts.gov.in/hcservices/ alone and each case has to be decided on its own facts andcircumstances. Therefore, now, we shall examine the materialsavailable on record to find out as to whether the alleged victim of thecanteen is a 'workman' of the Management. 14. In the case on hand, as has already been pointed out supra, asagainst the strong assertion made by the workers Union that the canteenworker is not the workman of the Management, the Management has notasserted anything, in positive terms, that the said canteen worker istheir workman. Further more, except saying that they have providedinfrastructure to the canteen, nowhere, the Management has stated thatthe canteen worker is their worker and no details of date of appointmentof the said worker in the canteen, his scale of pay etc. are furnished. 15. In catena of cases, we have seen that whenever a canteen workerseeks for regularisation of his post, the Managements deny such claim ofthe canteen worker on the ground that canteen workers are not theirworkers, like the one before the Honourable Supreme Court in the abovecited judgment [(2006) 1 SCC 567]. But, in the case on hand thecontention of the Management is other way round, to suit theirconvenience, saying that the canteen worker is their worker, withoutgiving any details of his appointment. Moreover, from the grounds ofappeal also it is clear that the canteen is being run by a privatecontractor. When the canteen is being run by a private contractor, itis common knowledge of any prudent man that the contractor would bringin his own men to maintain the canteen, lest, he has to face hurdlesfrom the workers day in and day out. At the cost of repetition, wereiterate that there was no clear assertion from the Management as tohow the canteen workers are their workmen, for all purposes and from thematerials placed on record we could observe that this strange plea hasbeen taken by the Management, without substantiated by any material,with the sole aim of sacking the delinquent/workman and this chameleonattitude of the Management cannot be appreciated. Therefore, at nostretch of imagination, it could be said that the canteen worker, who isalleged to have been assaulted by the delinquent officer, is the workmanof the Management. When there is no pleading on the part of theManagement that the said canteen worker is their worker and when thematerials on record speak volumes that the said canteen worker is notthe workman of the Management, we have no hesitation to hold that thesaid canteen worker is not a 'workman' of the Management and the remandordered by the learned single Judge, to find out the said fact, isunnecessary. 16. As has been observed supra, to attract the misconduct underStanding Order 16(t), the victim must be a 'workman' of the Management.When the Management has failed to prove that the alleged victim wastheir 'workman', the very root of their case leading to framing chargesagainst the delinquent officer, is cut.17. In view of the availability of abundant material on record toshow that the alleged victim is not at all a 'workman' of the Managementand in view of pendency of the matter for quite a long time i.e. from https://hcservices.ecourts.gov.in/hcservices/ the year 1986 onwards, we do not see any justification in the remandordered by the learned single Judge. 18. When the very basis for the Management to frame a charge againstthe delinquent officer is cut from its roots, in view of our findingthat the alleged victim is not at all a workman of the Management, whichis mandatory to satisfy the provisions of Standing Order 16(t), theentire proceedings initiated against the delinquent are vitiated andtherefore, the plea of the Workers Union needs to be upheld. In view ofour above finding, we need not have to traverse into the other aspectsof the case, since the very base of the charge against the delinquentofficer is unfounded. In the result, W.A.No.838 of 2000 filed by the Management fails andthe same is dismissed and W.A.No.335 of 2001 filed by the Workers Unionis allowed. The Management is directed to reinstate the delinquentofficer with continuity of service and all other attendant benefitswithin twelve weeks from the date of receipt of a copy of this judgment.But, however, taking into consideration the long severance of employer-employee relationship, we order only 50% backwages to the delinquentemployee. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar Rao ToThe Principal Labour Court,Madurai1 cc to M/s.Row & Reddy, AdvocateSR.12295KG (CO)W.A.Nos.838/2000 & 335/2001MMP 12.3.08 https://hcservices.ecourts.gov.in/hcservices/