The Management of St.Thomas Hospital and Leprosy Centre, Chettupattu – 606 801, Tiruvannamalai District v. Jessy Joys & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.04.2010CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.24542 of 2001 andW.P.No.10881 of 2002The Management of St.Thomas Hospital and Leprosy Centre,Chettupattu – 606 801,Tiruvannamalai District. ... Petitioner in W.P.No.24542/2001Jessy Joys ... Petitioner inW.P.No.10881/2002 Vs1.Jessy Joys2.The Presiding Officer, Labour Court, Vellore ... Respondents inW.P.No.24542/20011.The Management of St.Thomas Hospital and Leprosy Centre, Chettupattu – 606 801, Tiruvannamalai District. 2.The Presiding Officer, Labour Court, Vellore ...Respondents in W.P.No.10881/2002W.P.No.24542/2001PRAYER:-Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Certiorari, to call forthe records pertaining to the Award dated 26.07.2001 passed by thesecond respondent in I.D.No.208 of 1996 and to quash the same.W.P.No.10881/2002PRAYER:-Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of certiorarifiedmandamus, calling for the records relating to the order oftermination dated 03.04.1991 passed by the first respondent and theorder dated 26.07.2001 passed in I.D.No.208 of 1996 on the file ofthe second respondent quash the same in so far as the same asagainst the petitioner and direct the first respondent to reinstatethe petitioner in service with backwages. https://hcservices.ecourts.gov.in/hcservices/ For PetitionersW.P.No.24542/2001 : Mr.Sanjay Mohan for M/s.Ramasubramanian AssociatesW.P.No.10881/2001 : No appearanceFor Respondents W.P.No.24542/2001 : No appearance for R1W.P.No.10881/2001 : Mr.Sanjay Mohan for M/s.Ramasubramanian Associates for R1 C O M M O N O R D E RThe first writ petition (W.P.No.24542/2001) was filed by theManagement, challenging the Award dated 26.07.2001 passed by theLabour Court, Vellore in I.D.No.208 of 1996 granting reinstatementwith service continuity but without backwages to the contestingrespondent/workman. The writ petition was admitted on 14.12.2001and notice was ordered to the contesting respondent. An order ofinterim stay was granted on the same day.2. Subsequently, the workman took out an application forpayment of monthly wages under Section 17-B of the I.D.Act. By anorder dated 26.12.2002, the interim stay was made absolute oncondition that the Management deposit the entire arrears ofbackwages within eight weeks and pay the last drawn wages in termsof Section 17-B of the Industrial Disputes Act. In default ofthese conditions, it was ordered that the stay shall stand vacated.3. It is at this juncture, the Workman filed W.P.No.10881 of2002, challenging the Award of the Labour Court, Vellore made inI.D.No.208 of 1996 dated 27.07.2001. By the impugned Award, theLabour Court set aside the punishment of dismissal given to theworkman and directed her reinstatement with service continuity butwithout backwages. The said writ petition was admitted on01.04.2002.4. Heard the arguments of Mr.Sanjay Mohan appearing forM/s.Ramasubramanian Associates. The workman did not appear eitherin person or through his counsel.5. The workman was employed in the laundry section of thehospital. She was given a charge memo dated 26.11.1990. Thecharge against the Workman was that on 20.11.1990, she dumped thewet clothes on the drying machine and as a result of which, waterwas splashed on the face of one Mohan, who was sitting nearby andtaking his food. When the said Mohan reported the matter to theHead of the Laundry Section, the Workman got annoyed and threw herchappal on the said Mohan. At her instance, her husbandG.Mariaselvam trespassed into the Hospital premises and both ofthem entered into the consultation room in the Leprosy Ward and in https://hcservices.ecourts.gov.in/hcservices/ the presence of the Medical Superintendent who was examining aleprosy patient she abused her in most vulgar language andassaulted her. At the instance of the staff members at the place, afurther attack on the Medical Superintendent was thwarted. Thepetitioner and her husband also assaulted M/s.A.Infant Raj andR.D.G.Pandian with chappals and kicked Infant Raj, who came to therescue of the Medical Superintendent.6. The petitioner gave her explanation dated 30.11.1990. Herexplanation was not satisfactory and an Advocate from outside wasappointed as an Enquiry Officer. The Enquiry Officer held that thecharges against the Workman were proved. A copy of the EnquiryReport was sent to the Workman along with the show cause notice asto why she should not be dismissed from service from the date ofher suspension i.e. 21.11.1990. Though the workman claimed that sheasked for the change of the Enquiry Officer on the ground he maynot render justice and that the Enquiry Officer had asked her tosign blank papers, the Management did not believe those statements.Copies of deposition were furnished to the workman and she alsocross-examined M.W.1 to M.W.8 in the enquiry. It was found that shewas adopting dilatory tactics so that the enquiry may not becompleted. She was given full opportunities. The Enquiry Officerheld that the charges were proved and on that basis she wasdismissed from service. 7. Thereafter, she raised an industrial dispute under Section2A(2)of the Industrial Disputes Act before the Government LabourOfficer. On the strength of the failure report given by theConciliation Officer, she filed a claim statement before the LabourCourt dated 01.09.1996. The Labour Court registered the dispute asI.D.No.208 of 1996. On notice from the Labour Court, the Managementfiled a counter statement dated 30.11.1996. In the counteraffidavit, they had also pleaded that in the event of Labour Courtdeciding the Preliminary issue regarding the validity of theenquiry, they may be given an opportunity to lead fresh evidence tojustify the charges.8. Before the Labour court, on the side of the Workman, thejudgment of the Criminal Appellate Court in C.C.No.29 of 1993 wasmarked as Ex.W1. On the side of the Management, 22 documents werefiled and they were marked as Exs.M1 to M22. 9. The Labour Court framed the following three issues forconsideration:i)whether the enquiry conduted against the workman was fairand proper?ii)whether the findings rendered by the Enquiry Officerholding that the charges were proved was correct?iii)Whether the workman was entitled for relief of backwagesand service continuity and other attendant benefits together withreinstatement? https://hcservices.ecourts.gov.in/hcservices/

10. In respect of the first issue, the Labour Court held thatthe enquiry was fair and proper. In respect of the second issue,the Labour Court held that the charges against the Workman wereproved. In the criminal case, she was released on probation underSection 3 of the Probation of Offenders Act,l958. With reference tothe relief, the Labour Court held that she did not beat the workerwith prior planning and she had become emotionally surcharged.Therefore, there was a need to reduce the punishment. The LabourCourt held that since she was not in employment for the last 10years, she must be deprived of backwages which itself can be asufficient punishment. Therefore, it ordered her re-instatement butwithout backwages.11. Aggrieved by this Award, both sides have come up with thetwo writ petitions. 12. The learned counsel for the Management submitted thathaving found that the charges were proved and the enquiry wasconducted in a fair and proper manner, it is not open to the LabourCourt to order reinstatement especially when the proved chargeswere so severe. In this context, they relied upon a judgment of theSupreme Court in L&T Komatsu Ltd. v. N. Udayakumar reported in(2008) 1 SCC 224. In that case the Supreme Court had reviewed allthe previous cases bearing on the subject and declined to grant anyrelief to the workman. Therefore, it will be useful to refer to thefollowing passages found in paragraphs 10 and 11:"10. ...As noticed hereinabove at least in two of thecases cited before us i.e. Orissa Cement Ltd. and NewShorrock Mills this Court held: ‘Punishment ofdismissal for using of abusive language cannot beheld to be disproportionate.’ In this case all theforums below have held that the language used by theworkman was filthy. We too are of the opinion thatthe language used by the workman is such that itcannot be tolerated by any civilised society. Use ofsuch abusive language against a superior officer,that too not once but twice, in the presence of hissubordinates cannot be termed to be an indisciplinecalling for lesser punishment in the absence of anyextenuating factor referred to hereinabove.”11. ...It may also be noticed that in Orissa CementLtd. v. Adikanda Sahu and in New Shorrock Mills v.Maheshbhai T. Rao this Court held that use of abusivelanguage against a superior, justified punishment ofdismissal. This Court stated ‘punishment of dismissalfor using abusive language cannot be held to bedisproportionate’. If that be the position regardingverbal assault, we think that the position regardingdismissal for physical assault, must be found all themore justifiable. Recently, in Muriadih Colliery of https://hcservices.ecourts.gov.in/hcservices/ Bharat Coking Coal Ltd. v. Bihar Colliery KamgarUnion this Court after referring to and quoting therelevant passages from Krishnakali Tea Estate v.Akhil Bharatiya Chah Mazdoor Sangh9 and TournamullaEstate v. Workmen held: (SCC p.336, para 17)‘The courts below by condoning an act ofphysical violence have undermined thediscipline in the organisation, hence, inthe above factual backdrop, it can never besaid that the Industrial Tribunal could haveexercised its authority under Section 11-Aof the Act to interfere with the punishmentof dismissal.’ ”(Emphasis added)13. In the present case, the finding of the Labour Court thatthere was no prior planning or that it had happened due to theworkman getting emotionally surcharged was not borne out byrecords. On the other hand, after the incident in the laundrysection, the workman has brought her husband, who is an outsiderand quarelled with the Superintendent. Even when persons tried toprevent were also assaulted. These findings recorded by the EnquiryOficer was not disagreed by the Labour Court. In such circumstancesfor the proved misconduct an order of reinstatement though withoutbackwages cannot be done in the exercise of power under Section 11-A of the I.D.Act. 14. In the light of the judgment of the Supreme Court referredto above, it is not a fit case where any relief can be given to theworkman. Hence, W.P.No.24542 of 2001 stands allowed. W.P.No.10881of 2002 stands dismissed. No costs. If any amounts were paidpursuant to interim order passed by this Court, the same shall notbe recovered from the workman.Sd/-Asst. Registrar//true copy//Sub Asst.Registrar svkiTo1.The Presiding Officer, Labour Court, Vellore. https://hcservices.ecourts.gov.in/hcservices/

2. The Section Officer, V.R.Section, High Court, Madras.1 cc to Mr.S.Ramasubramaniam & Associates, Advocate, Sr.No.29333 order inW.P.No.24542 of 2001 andW.P.No.10881 of 2002AKR {CO}TP/14.5.2010.