J.Ebeneser James v. 1.Sri Ganapathi Mills Co.Ltd., Sakthi Nagar, Tirunelveli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 26-07-2007CORAMTHE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUWRIT APPEAL No.4131 OF 2004J.Ebeneser James...Appellant/2nd Respondent.-vs-1.Sri Ganapathi Mills Co.Ltd., Sakthi Nagar, Tirunelveli, represented by Joint Managing Director.2.The Presiding Officer, Labour Court, Tirunelveli....Respondents/Petitioner and 1st Respondent.Appeal against the order, dated 19.07.2002, made in W.P.No.8912of 1995 on the file of this Court.WA.No.8912/95: Petition presented under Article 226 of the Constitution ofIndia, to issue a Writ of Certiorari calling for the records of the firstrespondent in ID.No.576/92 dated 14.7.1994 quash the same.For appellant : Ms.Anna MathewFor respondents 1 : Mr.R.Parthiban J U D G M E N TS.PALANIVELU,J.This matter has emerged from the following facts :"First respondent mills is a public limited company, engaged inthe production of cotton yarn. Appellant was working with firstrespondent in Roving Department. On 29/30.09.1991, he completed histhird shift from 12.00 a. m. to 07.00 a.m. On 30.09.1991, at about 07.15 https://hcservices.ecourts.gov.in/hcservices/ a.m., outside the mill gate, he, along with two other co-workers assaultedanother co-worker, by name, Velu, causing injuries to him. Velu belongedto D.M.K.Union, while the other three persons belonged to C.I.T.U. Thesaid Velu was subjected to assault by them, since he allegedly utteredindecent remarks against their president Shanmuga Velayudham. Velu lodgeda police complaint against the three workmen before the management as wellas the police. On the strength of the complaint, a charge memo was issuedto the appellant and thereafter he was suspended from service on03.10.1991. Appellant submitted an explanation on 11.10.1991 and since itfailed to satisfy the management, a domestic inquiry was ordered andconducted. In spite of notice sent to the appellant, he did not turn up forthe inquiry on the first occasion and subsequently he appeared and theinquiry was over.On the date of examination, Velu stated that he withdrew thecomplaint against the three workmen and while he was quizzed over thereason for his withdrawal of the complaint, he responded that as theytendered apology, he withdrew the complaint. On 18.11.1991, the enquiry officer submitted his finding, holdingthat charges against the appellant were proved. Thereafter, a second showcause notice was issued to the appellant on 22.11.1991. Since he did notsubmit any explanation, the management was left with no option except todismiss the appellant from service on 19.12.1991.The appellant raised a dispute under Section 2 A of theIndustrial Disputes Act, 1947, before the Labour Officer, which ended infailure of conciliation. Hence, he filed I.D.No.207 of 1992 on the fileof Labour Court, Madurai, which was transferred to Labour Court,Tirunelveli, and tried in I.D.No.576 of 1992. The said Court passed anaward on 14.07.1994, directing the management/first respondent toreinstate the appellant with back wages and all attendant benefits andalso continuity of service. Aggrieved over the said order of the LabourCourt, the management preferred a writ petition, wherein, a learned singleJudge of this Court considered the facts of the case in the light of thelegal position on the subject and passed an order, reducing the punishmentto one of reinstatement, without back wages for the period from 19.12.1991to 19.11.1994. As against the said order, the appellant has come beforethis Court, by way of this appeal."2. The entire issue in this case revolves around a circumstance,which is, the withdrawal of complaint by the injured Velu. 3. Ms.Anna Mathew, learned counsel for the appellant, wouldstrenuously contend that when the finding of the domestic inquiry wasformed on "no evidence", by no stretch of imagination, it could be termedthat the appellant was a wrong-doer. She took us through the features, https://hcservices.ecourts.gov.in/hcservices/ regarding the statements adduced by the witnesses before the enquiryofficer and submitted that if the salient features of the inquiryproceedings are subjected to a close scrutiny, the Court could not come toa conclusion that the appellant behaved disorderly.4. Per contra, Mr.R.Parthiban, learned counsel for the firstrespondent/management, would vehemently contend that it is not the case of"no evidence" and that even though Velu did not support the allegationscontained in the complaint, he stated before the enquiry officer that helodged the complaint. 5. For a better appreciation of the rival submissions, it hasbecome imperative for this Court to highlight certain aspects from theinquiry proceedings, which are as under :"While Velu appeared before the enquiry officer, for a querywhether he presented the complaint, his answer was in the affirmative.For another question whether the incident alleged in the complaint wastrue, he responded that since they compromised the matter, he withdrew thecomplaint. He further stated that since the three workmen tenderedapology, he was obliged to come to a compromise. In cross-examination, hetold that he gave a complaint through Secretary Brahmanayagam, whoobtained his signature while he was in hospital and he did not know whowrote the complaint.On the other hand, the appellant appeared before the enquiryofficer and deposed that since the complainant withdrew his complaint, hewas not an offender. He further stated that he did not assault Velu andtender apology."6. In this connection, it is profitable to cull out Clause 24 (k)of the Standing Orders of the first respondent mills, which is as follows :"Drunkenness or riotous or disorderly behaviourduring the working hours or any act subversive ofdisciplinary and or efficiency."7. Contents of a complaint, essaying commission of crime ordisorderly behaviour or riotous activity or any other act injurious to thewelfare, discipline and administration of a management, which would shockthe conscience of the persons, who are affected in the said incident,should be supported, more particularly saying, corroborated by the person,who made it. If the contents of the complaint are not supported or statedbefore the competent forum by its author, then, there is no other goexcept to reach a conclusion that the complaint is non-est. Only whenthere is supportive evidence as to the allegations in the complaint, thenalone, the opposite party will have an opportunity to confront theconnected witness, by controverting the details, which stare against him.When the contents of the complaint are not fortified by the person, wholodged the complaint, the other party will be put to prejudice, woefully https://hcservices.ecourts.gov.in/hcservices/ losing his valuable right of crossexamining the said person. If thecompetent authority pounces upon a conclusion against a person, who has noopportunity for cross-examination during the inquiry, ignoring thevaluable right lost by him, it would be a classical instance of prejudiceor injustice being caused to that person and such a prejudice on the partof the said competent authority would amount to violation of principles ofnatural justice.8. In the present case, the only point available to themanagement is, the admission of Velu before the enquiry officer, that helodged the complaint. While the entire materials on record are readharmoniously, it transpires that the incident stated in the complaint maynot be true. This Court need not go deep into such matters. However,when the finding of the enquiry officer is found to be perverse and on thebasis of which the management has taken a decision ignoring the wellsettled principles, the writ court can very well interfere with such afinding. As Velu had not supported the allegations in his complaint, ithas to be termed that the finding of the enquiry officer was based on "noevidence".9. Learned counsel for the management would contend that acareful perusal of inquiry proceedings would disclose that the gravity ofcharges against the appellant and the finding of the enquiry officer arewell founded, on the basis of proper evidence available before him, and,hence, this Court could not interfere with the said finding. In supportof his contention, he placed reliance upon a decision of the Hon'bleSupreme Court in Coimbatore District Central Cooperative Bank v.Coimbatore District Central Cooperative Bank Employees Association andanother, 2007 (4) Supreme Court Cases 669, wherein it was held as follows :"29.....Normally, when disciplinary proceedingshave been initiated and finding of fact has beenrecorded in such inquiry, cannot be interfered withunless such finding is based on "no evidence" or isperverse, or is such that no reasonable man in thecircumstances of the case would have reached suchfinding. In the present case, four charges had beenlevelled against the workmen...."10. But, in this case, it has already been observed that therewas no evidence for the enquiry officer, to formulate a decision againstthe workman and hence the management cannot take recourse to the saiddecision.11. Learned counsel for the first respondent/management alsoargued with reference to clause 24 (k) of the Standing Orders, contendingthat even though the occurrence took place outside the premises of themills and out of working hours, since the occurrence relates to tradeunion activities of the workmen and also affects the discipline maintainedby the management, certainly, the management can lay hands on the workmen. https://hcservices.ecourts.gov.in/hcservices/ He further argued that it was appropriate for the management to initiateproceedings against the erring workman. He also cited a decision of theHon'ble Supreme Court, rendered by three Hon'ble Judges, in GlaxoLaboratories (I) Limited v. Labour Court, Meerut, and others, 1984 (1)L.L.J.16, wherein it was held as under :"Keeping in view the larger objective sought tobe achieved by prescribing conditions of employmentin certified standing orders, the only constructionthat can be put of cl.10 is that the various acts ofmisconduct therein set out would be misconduct forthe purpose of S.O.22, punishable S.O.23, ifcommitted within the premises of the establishmentor in the vicinity thereof. What constitutesestablishment or its vicinity would depend on thefacts and circumstances of each case."The learned counsel also garnered support from a decision of the Hon'bleSupreme Court in Palghat BPL & PSP Thozhilali Union v. BPL India Ltd. andanother, 1995 (6) Supreme Court Cases 237, in which it is ruled thatmisconduct is a question of fact, which has to be ascertained withreference to the situation in which it was alleged, and the attendingcircumstances should also be examined. The relevant portion of the saiddecision goes thus:"5..... Any act subversive of discipline committedoutside the premises is also misconduct. Any actunrelatable to the service committed outside thefactory would not amount to misconduct. But when amisconduct vis-a-vis the officers of the management iscommitted outside the factory, certainly the same wouldbe an act subversive of discipline. The object appearsto be that workmen need to maintain discipline vis-a-vis its management. What amounts to misconduct is aquestion of fact. It would be decided with referenceto the facts, the situation in which the act wasalleged to have been committed, and the attendingcircumstances leading thereto." 12. We are in agreement with the learned counsel for themanagement on the point that if any act is committed inside or in thevicinity of the premises of an establishment, which would be subversive tothe discipline and order of the said establishment, the management has gotevery right to initiate necessary action against the erring workmen.Further, the management cannot remain an idle spectator, when relationshipbetween the workers gets strained, exposed by physical assault, as in thiscase. But, in the instant case, though there was a complaint, the contentsof the same remained unestablished. https://hcservices.ecourts.gov.in/hcservices/

13. Guided by the decision in Palghat BPL & PSP Thozhilali Union'case, referred to supra, when the facts of this case are considered, sincemisconduct is a question of fact, while the other attending circumstancesare closely examined, we are at a loss to find out any point, which isfavourable to the management.14. Learned counsel for the first respondent also produced a copyof an order of a Division Bench of this Court in W.P.No.27283 of 2003,dated 27.01.2006, wherein, according to him, on identical facts, theDivision Bench upheld the decision taken by the management. 15. In the said case, the writ petitioner was working as an X-RayTechnician in JIPMER, Pondicherry; on 10.07.1995, one Amudha gave acomplaint to the management, stating that the petitioner misbehaved withher and, subsequently, she withdrew the complaint and also did not appearbefore the enquiry officer. However, taking into account all thecircumstances prevailing in that case, Their Lordships came to aconclusion that non-examination of the complainant would not per se renderthe order of the authorities as based on no evidence or in violation ofprinciples of natural justice, rejecting the request of the workman. 16. Every case has to be analysed on its own facts andcircumstances. In the above said case, the occurrence was allegedly insidethe hospital and there was a charge of intimidating the patient andforcing her to withdraw the complaint. But, here, the facts are otherwise.In this case, the complainant himself appeared before the enquiry officerand, besides withdrawing the complaint, he says that the contents werewritten by somebody else and that he simply inked the complaint, whichpave a long way to show that he was ignorant of the contents. Hence, theabove said decision is not helpful to the management.17. Coming to the quantum of penalty imposed on the appellant,the learned single Judge had thoroughly gone through the materials andarrived at an appropriate conclusion, which, in our view, does not warrantany interference. Simultaneously, it has to be borne in mind that thoughthere was "no evidence" to place reliance upon the contents of thecomplaint, still, since the complainant Velu had admitted the lodging ofthe complaint against the appellant, one should take a view that theindividual concerned, namely, appellant should give no room for lodging ofsuch a complaint against him. Considering the said aspect, we are of theconsidered opinion that denial of back wages to the appellant is perfectlyjustified. As such, the order passed by the learned single Judge standsconfirmed and this appeal does not merit consideration. https://hcservices.ecourts.gov.in/hcservices/

18. Writ Appeal is dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dixitToThe Presiding Officer,Labour Court,Tirunelveli.+ 1 CC To Ms.R.Vaigai, Advocate SR NO.46168+ 1 CC To Mr. R.Parthiban, Advocate SR NO.46529W.A.No.4131 OF 2004ng[co]gp/6.8.