The Management of Tata Tea Ltd. v. The Presiding Officer Labour Court, Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 6.03.2009CORAM:THE HONOURABLE MR. JUSTICE K. CHANDRUWrit Petition No.6295 of 2000The Management of Tata Tea Ltd.owning Pannimade EstatePannimade P.O.,Tamil Nadu 642 131rep.by its ManagerMr.Rahul Madura .. PetitionerVs.1.The Presiding OfficerLabour Court ,Coimbatore 2.S.Kumaresan.. RespondentsPetition filed under Article 226 of the Constitution of India forthe issuance of writ of Certiorari to call for the records leading tothe Award in I.D.No.358 of 1996 dated 10.8.1999 and quash the same.For Petitioner : M/s.Ramasubramaniam AssociatesFor 2nd Respondent : Mr.Ajay Ghose O R D E RThe petitioner is the management. Aggrieved by the award passedby the first respondent Labour Court made in I.D.No.358 of 1996 dated10.8.1999, the present Writ Petition has been filed.2. By the impugned award, the Labour Court set aside thedismissal of the second respondent and directed his reinstatementwith backwages and other service benefits.3. The Writ Petition was admitted on 7.4.2000 and an interim staywas granted with a condition that the petitioner management deposits50% of the backwages and also complies with monthly payments undersection 17-B of the Industrial Dispute Act provided the secondrespondent files an affidavit that he was not gainfully employedanywhere. 4. Thereafter the second respondent filed a vacate stayapplication. When that came up for hearing, this Court by an order https://hcservices.ecourts.gov.in/hcservices/ dated 17.112000 made the stay absolute and further directed thesecond respondent to withdraw the sum of Rs.42,500/-, which wasdeposited to the credit of I.D. A further direction was also givento deposit another sum of Rs.30,000/- to the credit of of I.D, whichwas to be invested in a nationalised bank initially for a period offive years with further direction for periodical renewal until thedisposal of the Writ Petition. This Court also directed thepetitioner to pay Rs.20,000/- per month commencing from April 2000till the disposal of the Writ Petition.5. The second respondent was appointed as an Assistant FieldOfficer by the petitioner with effect from 16.10.1992. It was statedthat he was charge sheeted on 14.6.1995. The allegation against thesecond respondent was that he had misbehaved with a temporary womanplantation worker and offended her modesty by using bad language.When she gave a complaint against the said officer to the management,he approached another co-worker by name Krishnan and used pressuretactics to make her to withdraw the complaint. An enquiry wasconducted against the second respondent and based upon the enquiryofficer's report, he was dismissed from service with effect from6.11.1995.6. Thereafter, he raised an industrial dispute before theGovernment Labour Officer. Since the said officer could not bringabout mediation, he gave his failure report. On the strength of thefailure report, he filed a claim petition before the first respondentLabour Court. On notice from the Labour Court, the petitionermanagement filed a counter statement dated 'nil' (September 1997).They also raised an issue that since the second respondent wasemployed in a supervisory capacity and was drawing more thanRs.1600/- per month, he was not a "workman" within the meaning ofSection 2(s) of the Industrial Dispute Act.7. Before the Labour Court, the second respondent examinedhimself as W.W.1 and one George Phineora as W.W.2. He was a fieldOfficer in the same estate. He was also the Chairman of the StaffUnion. On behalf of the management, one Rahul, who was the Managerof the Estate was examined as M.W.1. Before the Labour Court, thesecond respondent filed 7 documents and they were marked as Exs.W.1to W.7. On the side of the petitioner management, 37 documents werefiled and they were marked as Exs.M.1 to M.37.8. The Labour Court, after extracting the relevant portion ofthe evidence, found that the supervisory work of the secondrespondent was only an incidental and his work was mainly of manualand clerical. Therefore, the objection raised by the petitionermanagement regarding the status of the second respondent wasoverruled. 9. On the merits of the case, the Labour Court found that the https://hcservices.ecourts.gov.in/hcservices/ Assistant Manager, Field Officer, Supervisor and another worker, whowere examined in the domestic enquiry were not eye witnesses to theincident set out in the complaint. The first witness was the one,who conducted the preliminary enquiry in the absence of the secondrespondent. So far as the statement of Krishnan was concerned, theLabour Court doubted his complaint given in Ex.M.19. It was alsostated by the Labour Court that the two women plantation workers,namely Rajathi and Kalyani stated that they were not aware of thecomplaint in Ex.M.7. So far as Kalyani (mother of the victimRajathi) is concerned, she had stated that she was not present in thespot and she had not heard the actual words uttered by the secondrespondent. 10. In paragraph 9 of the award the Labour Court observed asfollows:"It is in the evidence of Rajathy that she was called by thepetitioner and she was told by him not to cover her bodywith her saree and on hearing him, she started crying andwhen her mother saw her crying and enquired her, she toldher about the same. Though her in chief examination, it isstated by her that the indecent words are spoken by thepetitioner once to her it is in her cross-examination thatthe petitioner has spoken so twice and it is also furtheradmitted by her that after the incident she went for theweighing work and only after the weighing work is over, shewas seen crying by her mother and when she was asked by hermother, she informed her mother about the same."11. The Labour Court held that the management's action in notconsidering the rebuttal evidence let in by the second respondent wasnot proper and hence in the enquiry conducted by the petitioner,there was no legal evidence.12. The original record relating to the industrial dispute wassummoned from the Labour Court and it was circulated for the perusalby this Court.13. The victim Rajathi, who was a woman plantation worker in herchief examination has clearly spoke about the act of the sexualharassment made by the second respondent. She also mentioned theattempts made by the second respondent to make her to withdraw thecomplaint. In cross-examination, she gave clear answers which areas follows. The statement, which was made in Tamil, if translated into English, reads as follows:"He has called me, who made you to wear the gunny sack inthis fashion. I said, "Maistry". First time he said, "donot cover the chest with saree". When I asked him, how hecan speak like that, he once again said, "do not close https://hcservices.ecourts.gov.in/hcservices/ your chest with saree and reiterated the same. He saidthis standing very close to me."14. She only said that she did not remember having given acomplaint. It must be stated that the incident had taken place on29.4.1995 and her evidence was recorded during July 1995. Theevidence nowhere shows that she had denied having given anycomplaint. Similarly the second witness Kalyani, mother of thevictim also spoke about the incident, though not as an eye witness.When these evidence were appreciated by the domestic enquiry officer,the domestic enquiry officer believed the evidence of the two womenworkers who were daughter and mother. It is not as if the authority,who conducted the preliminary enquiry should be an eye witness. Onthe contrary, any management is bound to enquire into the accusationof sexual harassment by the superior or the management staff withoutfail.15. The Labour Court was wrong in disagreeing with the findingsof the domestic enquiry officer, when it is not found to be eitherperverse or supported by evidence. The findings of the Labour Courtthat the second respondent may be a 'workman' within the meaning ofSection 2(s) of the Industrial Dispute Act, does not call forinterference. But, insofar as the observation made by the petitionerthat some portion of the evidence was hearsay and hence unacceptable,cannot be accepted.16. The Supreme Court while its judgment in State of Hariyana vs.Rattan Singh reported in 1982 (1) LLJ 46 held as follows:"It is well settled that in a domestic enquiry, the strictand sophisticated rules of evidence under the IndianEvidence Act may not apply. All materials which arelogically probative for a prudent mind are permissible.There is no allergy to hearsay evidence provided it hasreasonable nexus and credibility.17. It has been consistently held by the Supreme Court in adomestic enquiry the misconduct need not be proved beyond allreasonable doubt, but if there are preponderance of probabilities,that is enough for holding a person guilty of misconduct. 18. It is unfortunate that the Labour Court had not kept in mindthe decision of the Supreme Court in Visshaka and others v. State ofRajasthan and others reported in AIR 1997 SC 3011. The Supreme Courtin paragraph 16 held as follows:"16. In view of the above and the absence of enacted law toprovide for the effective enforcement of the basic humanright of gender equality and guarantee against sexualharassment and abuse, more particularly against sexual https://hcservices.ecourts.gov.in/hcservices/ harassment at work places, we lay down the guidelines andnorms specified hereinafter for due observance at all workplaces or other institutions, until a legislation isenacted for the purpose. This is done in exercise of thepower available under Art.32 of the Constitution forenforcement of the fundamental rights and it is furtheremphasised that this would be treated as the law declaredby this Court under Art.141 of the Constitution.19. The Supreme Court has also held that as to what amount to a'sexual harassment' and also the duty of the employer to prevent suchsexual harassment of women in work places was set out in theguidelines in paragraphs 1 and 2 and in paragraph 3, the preventivesteps to be taken by the employer have been given, they read asfollows:"1. Duty of the employer or other responsible persons inwork place and other institutions:It shall be the duty of the employer or otherresponsible persons in work places or institutions toprevent or deter the commission of acts of sexual harassmentand to provide the procedures for the resolution, settlementor prosecution of acts of sexual harassment by taking allsteps required.2. Definition:For this purpose, sexual harassment includes suchunwelcome sexually determined behaviour (whether directly orby implication) as:a) physical contact and advancesb) a demand or request for sexual favours;c) sexually coloured remarks;d) showing pornography;e) any other unwelcome physical, verbal or non-verbalconduct of sexual nature.3. Preventive steps:All employers or persons in charge of work placedwhether in the public or private sector should takeappropriate steps to prevent sexual harassment."20. In the present case, the complaint made against the secondrespondent was a clear case of sexual harassment at the work place,given by a workman against her superior and the petitioner managementhas rightly taken appropriate action. When the complainant herselfcame forward to give evidence and whose evidence could not be https://hcservices.ecourts.gov.in/hcservices/ impeached in cross-examination, which was supported by otherwitnesses, who came to know about the incident as well as themanagement's preliminary enquiry can be a sufficient evidence to holdthe second respondent guilty of misconduct. Instead of dealing withthe matter as enjoined by the Supreme Court, the Labour Court hadgone on a tangent and had come to a wrong conclusion in its award.21. In the light of the above, the impugned award deserves to beset aside and the Writ Petition has to be allowed. Accordingly theWrit Petition stands allowed. However, there will be no order as tocosts.22. By virtue of the interim order, the second respondent was inreceipt of monthly payments in terms of Section 17-B of theIndustrial Dispute Act. Since the Supreme Court has held that it isonly in the nature of subsistence allowance, the same cannot berecovered. But on the other hand, in view of the award being setaside, it is open to the petitioner management to withdraw theamounts lying in deposit with the Labour Court.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarajrToThe Presiding OfficerLabour Court Coimbatore W.P.No.6295 of 2000PUR(CO)PMK(9/03/2009)