R. Ganesan v. Rane Luk Clutch (P) Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:21-9-2010CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.24488 of 2006W.P.No.36478 of 2005 & W.P.M.P.No.39268 of 2005W.P.No.24488 of 2006R. Ganesan...PetitionerVs.1.Rane Luk Clutch (P) Ltd.,Post Box No.20, Royakottah Road,Hosur – 631 1092.The Presiding Officer,Labour Court, Salem....RespondentsThis writ petition is filed under Article 226 of theConstitution of India, praying this Court to issue a writ ofcertiorarified mandamus, calling for the records of the secondrespondent in connection with the award pronounced in I.D.No.324 of2002 pronounced on 5.4.2005 and quash the same insofar as thepetitioner has been denied reinstatement with backwages, continuityof service and direct the first respondent to pay full backwages withcontinuity of service and all attendant benefits and award costs.W.P.No.36478 of 2005The Management of Luk India Pvt. Ltd.,(formerly known as Rane Luk Clutch Pvt Ltd.,Royakottah Road,Hosur – 635 109....PetitionerVs.1.The Presiding Officer,Labour Court,Salem.2.R. Ganesan...RespondentsThis writ petition is filed under Article 226 of theConstitution of India, praying this Court to issue a writ ofcertiorari, calling for the records of the first respondent inI.D.No.324/2004 and quash the award dated 5.4.2005 insofar it directsthe petitioner to pay compensation of Rs.60,000/- to the secondrespondent. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in:Mr.V.Prakash,W.P.No.24488/2006 &Senior Counsel2nd Respondent infor Mr.S.S.VasudevanW.P.No.36478/2005For 1st Respondent in:Mr.S.RavindranW.P.No.24488/2006 &for M/s.T.S.Gopalan & Co.Petitioner inW.P.No.36478/20052nd Respondent in:Labour CourtW.P.No.24488/2006 &1st Respondent inW.P.No.36478/2005COMMON ORDERFor the sake of convenience the parties in this common order arereferred to as 'Management' and 'Workman'.2.Both the writ petitions came to be filed challenging theaward of the Labour Court, Salem, made in I.D.No.324 of 2002 dated5.4.2005. W.P.No.24488 of 2006 is filed by the Workman challengingthe portion of the award refusing reinstatement, backwages andcontinuity of service to him, and W.P.No.36478 of 2005 is filed bythe Management challenging the award ordering compensation ofRs.60,000/- apart from gratuity and other benefits to the Workman.3.The brief facts necessary for the disposal of these writpetitions are as follows:(a)The Workman, after being discharged from CRPF, wasappointed as Security Guard on 16.10.1996 in the Management and hisservice was confirmed on 16.4.1998. On 1.4.2000, he was transferredto production department and during his employment in productiondepartment, he was suspended for two days for misbehaving with thecanteen worker. Again he was suspended for three days in the sameyear for less production. In the year 2001 also he was suspended forten days by way of punishment for abusing the Assistant Store Manager.(b)According to the management, on 20.7.2001 the workman whiledoing his second shift (4.30 p.m. to 2.00 a.m) at about 7.15 p.m.,misbehaved with one S.Ganesan, Executive (Administration) andassaulted him, who suffered bleeding injuries and the said Ganesanwas taken to hospital for treatment.(c)On 21.7.2001 a charge memo-cum-suspension order was issuedto the workman for the above misconduct. Two charges were framed anddomestic enquiry was conducted and after examining witnesses, the https://hcservices.ecourts.gov.in/hcservices/ Enquiry Officer submitted his findings holding that the chargeslevelled against the workman were proved. (d)On 4.12.2001 a second show cause notice was issued alongthe findings of the Enquiry Officer's report and the workmansubmitted his explanation on 10.12.2001. The said explanation havingnot been found satisfactory, by order dated 14.12.2001 the workmanwas dismissed from service.(e)The workman challenged the said dismissal by raisingI.D.No.324 of 2002 before the second respondent Labour Court as theconciliation efforts were failed and a failure report was filed on9.5.2002 by the Labour Officer, Krishnagiri. A preliminary issue wasraised regarding fairness in conducting enquiry. The said issue wasdecided against the workman and ultimately the final award was passedon 5.4.2005 holding that the workman cannot be ordered to bereinstated. However, a sum of Rs.60,000/- was ordered to be paid tothe workman as compensation apart from gratuity and other benefitswithin three months, failing which the amount shall carry 6%interest. (f)Being aggrieved over the award ordering compensation, themanagement has filed W.P.No.36478 of 2005. Aggrieved over thepreliminary finding as well as final award the workman has filedW.P.No.24488 of 2006 with the above said prayer.4.The learned Senior Counsel for the Workman submitted thatthe workman denied the charges and an Enquiry Officer was appointedand to represent the management a Presenting Officer was alsoappointed. Since no employee working in the management was willingto assist the workman apprehending victimisation, the Enquiry Officerought to have informed about the right of the workman to engage aperson to assist the workman, at best a retired worker, however, thesaid choice was not informed to the workman. The prayer to engage acounsel was also denied quoting the standing order. The said factwas pointed out before the Labour Court by raising a preliminaryissue to decide the fairness of the enquiry. However, the LabourCourt without appreciating the said factual aspect and the prejudicecaused to the workman overruled the objection and passed the impugnedaward by not ordering reinstatement, continuity of service andbackwages. The learned Senior Counsel further submitted that theworkman also gave complaint against the Officer, who also assaultedthe workman. In spite of giving deposition to that effect, the samewas not appreciated by the Enquiry Officer as well as the LabourCourt. The learned Senior Counsel therefore submitted that theEnquiry having not been conducted in a fair and proper manner andwithout extending the assistance of a retired workman, the mattermay be remitted to the Labour Court to lead evidence by themanagement as well as by the workman and time limit may be fixed for https://hcservices.ecourts.gov.in/hcservices/ passing fresh award. The learned Senior Counsel also cited severaldecisions in support of his submissions.5.The learned counsel appearing for the Management submittedthat the charges framed against the petitioner being commission ofserious misconduct and the workman having participated in theenquiry, even though his request to engage a counsel was declined asper the standing order, no prejudice was caused to him merely becausea Presenting Officer was permitted to present the case of themanagement. The learned counsel also submitted that the preliminaryfinding given by the Labour Court having not been challengedimmediately and the Labour Court having given its final verdict, theworkman cannot agitate the finding regarding preliminary issue atthis stage. The workman having lost the confidence of the managementcannot be reinstated and the grave misconduct having been proved, heis not entitled to get compensation and other benefits as ordered bythe Labour Court. Hence the order of the Labour Court has to beconfirmed insofar as the denial of reinstatement, backwages andcontinuity of service, the award of the Labour Court is to beconfirmed.6.I have considered the rival submissions of the learnedSenior counsel for the Workman as well as the learned counsel for theManagement.7.The charges framed against the workman reads as follows:"On 20.7.2001, you were employed in the secondshift commencing from 4.30 PM to 2 AM.It has been reported that at 7.05 PM, you havecome to the Time Office of the factory and askedfor Form 105 under ESIC Act to Mr.S.Ganesan,Executive -Admin, who was present in Time Office.Since Mr.S.Ganesan, was pre-occupied withattending outside phone calls at that time, he hasrequested you to come at the dinner time between8.00 &.8.30 PM and you went away.After that again at about 7.15 PM you have come tothe window in between Time Office and SecurityOffice and asked Mr.S.Ganesan to permit you tomake a phone call from there. Mr.S.Ganesan hastold you that as per the Management's instruction,nobody should be allowed to make any phone callsfrom there. On hearing this, you have tried tolift the receiver forcibly. At that timeMr.S.Ganesan has tried to prevent you from makinga call. Immediately, you have thrown thetelephone receiver on him. On seeing thiscommotion outside the Time Office near the window https://hcservices.ecourts.gov.in/hcservices/ where the Telephone was kept the security guardsMr.T.Karki, Mr.D.Rabba and Mr.Rahul Khaklary whowere in the next room namely security office andmain gate rushed to the time office. In themeanwhile an Act apprentice Mr.V.S.Madhumurthy whodid not find you at your work spot has also comein search of your. On seeing you near the timeoffice window, creating problems, he also came tothe spot, to know what was happening.At that time Mr.S.Ganesan came out from the timeoffice through the door, adjacent to the windowwhere the phone was kept. As soon as he came outof the time office, you shouted at him asking whyhe has not allowed you to make a phone call andyou have hit him on his left eye with your hand asa result of which, his spectacle broke and he hassustained bleeding injury on his left eye brow,below the left eye and left side of his nose. Atthe time of this assault the security guardsMr.T.Karki, Mr.D.Rabba and Mr.Rahul Khaklary andAct apprentice Mr.V.S.Madhumoorthy were present.Immediately you left from the spot.After that Mr.S.Ganesan was rushed to theGovt.Hospital and admitted as inpatient.Hence the unruly act of yours, and assaulting thesuperior officer is a grave misconduct underclause No.17(a), 17(k), 17(u), 17(ah) and 17(ag)of the certified standing order of the company."From the perusal of the above charges it is evident that the workmanwas refused to be permitted by the Executive (Administration) to makea phone call from the Time Office and immediately he allegedly thrownthe telephone receiver on the Executive (Administration) and alsoshouted at the Officer as to why he was not allowed to make a phonecall and hit the Officer on his left eye with his hand, as a resultof which his spectacle broke and the said person namely S.Ganesansustained bleeding injury on his left eyebrow. According to themanagement, the said incident was seen by the Security Guards viz.,T.Karki, D.Rabba, Rahul Khaklary and one apprentice viz.,V.S.Madhumoorthy. According to the management the said assaultcommitted by the workman was proved during the enquiry and the saidmisconducts are coming under Clause No.17(a),(k),(u),(ah),(ag) of theCertified Standing Orders of the Company.8.It is the specific case of the workman that no employee ofthe management was willing to assist him during the domestic enquiryeven though the management was represented by a Presenting Officer. https://hcservices.ecourts.gov.in/hcservices/ His request to engage a counsel to plead his case was negativedciting the provision in the Standing Order. In the preliminaryissue raised before the Labour Court, the workman has stated that dueprocess of law as contemplated under the Industrial Disputes Act,1947 was not followed during the enquiry and therefore the enquirywas improper. In the counter affidavit filed by the management it isstated that the workman was given permission to bring his co-workerfor his assistance in the enquiry, but he has not availed the saidopportunity. The management also prayed for permission to adduceevidence before the Labour Court, if it is found that the enquiry wasfair and proper.9.The workman is not well-versed in English language isevident from Ex.M-9 and therefore he may not be aware of thetechnical intricacies involved in the case to defend his case. Thedenial of opportunity to cross examine PW-1, who gave the complaintagainst the petitioner is raised as an objection by the workman inhis reply to the final show cause notice. His denial of assistanceof a competent person was also emphasised in the reply which ismarked as Ex.M-22. The said aspects are not considered by theDisciplinary Authority in the order of dismissal marked as Ex.M-23.10.In Ex.M-8 it is stated that the workman was also attackedand he also gave a complaint before the Police. Thus, there are twoversions about the incident dated 21.7.2001. Therefore the EnquiryOfficer has to find out the truth by giving fair and reasonableopportunities to the workman and the management. The workman alsosought for giving document in Tamil. Exs.M-1 to M-7, the documentsmarked against the workman, are in English and Tamil version of thesaid documents are not furnished to the workman. The said issue,even though was raised before the Labour Court, was not appreciatedby the Labour Court while deciding the preliminary issue. Thepreliminary issue having been challenged in the writ petition filedby the workman, I am of the view that the objection raised regardingfairness of the enquiry has to be sustained and the subsequent finalaward passed by the Labour Court is to be set aside and the matterhas to be remitted to the Labour Court to adduce evidence to provethe charges levelled against the workman by the management. Theworkman can effectively defend his case before the Labour Court withthe assistance of his Counsel.11.As no co-worker was willing to assist the workmanapprehending victimisation to comply with the principles of naturaljustice and to maintain the fair play in action, themanagement/Enquiry Officer is bound to inform the workman about hisright to engage a person of his choice, other than a counsel. If theEnquiry Officer informed the said right and the workman refused toengage any person to represent him, then the workman cannot contendthat fair play in action and principles of natural justice areviolated. It is the specific case of the workman that no other https://hcservices.ecourts.gov.in/hcservices/ employee was willing to assist him on the threat of victimisation.The said stand of the workman is stated in Ex.M-12 dated 8.8.2001. Inthe above circumstances the Enquiry Officer should have informed theworkman that he has got a right of getting assistance from a retiredperson. The said right is not informed to the petitioner to complywith the principles of natural justice, particularly when themanagement is represented by a Presenting Officer.12.I am aware that normally departmental proceedings are to beconducted only on the basis of Standing Orders. However, if in agiven case no one is coming forward to assist him on the threat ofvictimisation, nothing wrong in giving assistance of a retiredemployee or a stranger, though not an advocate. The decision of theSupreme Court reported in AIR 1960 SC 914 (N.Kalindi v. TataLocomotive & Engineering Co. Ltd.) provides such an obligation to themanagement. In the said decision the Supreme Court held thus,"......... it is necessary to remember that ifany enquiry is not otherwise fair, the workmanconcerned can challenge its validity in anindustrial dispute.Our conclusion, therefore, is that a workmanagainst whom an enquiry is being held by themanagement has no right to be represented at suchenquiry a representative of his Union; though ofcourse an employer in his discretion can and mayallow his employee to avail himself of suchassistance." The above view was followed by the Supreme Court in its subsequentdecision reported in (1999) 1 SCC 626 (Bharat Petroleum CorporationLtd. v. Maharashtra General Kamgar Union)(para 30). The managementhaving not visualised the situation as arisen in this case, did notprovide for such a right to a workman in the Standing Order, is notan answer to deny the effective participation of the workman in thedepartmental enquiry.13.The preliminary issue decided can be agitated after thefinal award is passed by the Labour Court as held by the SupremeCourt in the decision reported in AIR 1975 SC 1900 : (1975) 2 SCC 661(Cooper Engineering Ltd. v. P.P.Mundhe). In para 22 the SupremeCourt held thus,"22. We are, therefore, clearly of opinionthat when a case of dismissal or discharge of anemployee is referred for industrial adjudicationthe Labour Court should first decide as apreliminary issue whether the domestic enquiryhas violated the principles of natural justice.When there is no domestic enquiry or defectiveenquiry is admitted by the employer, there willbe no difficulty. But when the matter is in https://hcservices.ecourts.gov.in/hcservices/ controversy between the parties that questionmust be decided as a preliminary issue. On thatdecision being pronounced it will be for themanagement to decide whether it will adduce anyevidence before the labour court. If it choosesnot to adduce any evidence, it will not bethereafter permissible in any proceeding to raisethe issue. We should also make it clear thatthere will be no justification for any party tostall the final adjudication of the dispute bythe Labour Court by questioning its decision withregard to the preliminary issue when the matter,if worthy, can be agitated even after the finalaward. It will be also legitimate for the HighCourt to refuse to intervene at this stage. Weare making these observations in our anxiety thatthere is no undue delay in industrialadjudication."The workman's conduct in not filing earlier writ petition tochallenge the preliminary finding cannot be put against him as it isleft open to the parties to challenge the said findings even afterthe final award is passed.14.As regards the award of compensation is concerned, theallegation levelled against the workman are serious misconducts andif it is properly proved by observing the principles of naturaljustice and fairness in procedure, the Workman is not entitled to getreinstatement or any compensation. However, the matter beingremitted to the Labour Court now, it is not necessary to go furtherinto the issue regarding the merits of the rival contentions. Bysetting aside the decision on the preliminary issue and theconsequential remand of the matter the management is also benefittedas the award of the Labour Court ordering compensation to the workmanis also set aside. Hence the preliminary finding given by the LabourCourt as well as the final award made in I.D.No.324 of 2002 are setaside and I.D.No.324 of 2002 is remitted back to the file of theLabour Court with a direction to permit the management as well asworkman to lead evidence in support of their respective contentionsand the Labour Court is directed to pass final award afresh within aperiod of six months from the date of receipt of copy of this order.The writ petitions are partly allowed with the above directions.No costs. Connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vrToThe Presiding Officer, Labour Court, Salem.1 cc To Mr.K.Sudalaikannu, Advocate, SR.69666W.P.No.24488 of 2006 &36478 of 2005 GG(CO)sra 28/09/2010