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SRI GANAPATHI MILLS CO. LTD. versus THE PRESIDING OFFICER,2. J.EBENESER JAMES

High Court of Madras

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Sri Ganapathi Mills Co. Ltd. v. The Presiding Officer,2. J.Ebeneser James - WRIT PETITION No.8912 of 1995 [2002] RD-TN 500 (19 July 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 19/07/2002

CORAM

THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM

WRIT PETITION No.8912 of 1995

Sri Ganapathi Mills Co. Ltd.,

Shankar Nagar

Tirunelveli, represented by

its Joint Managing Director. Petitioner. -Vs-

1. The Presiding Officer,

Labour Court,

Tirunelveli.

2. J.Ebeneser James Respondents. Petition filed under Article 226 of the Constitution of India praying for the issue of a writ of certiorari as stated therein. For petitioner : Mr.R.Parthiban

For 2nd respondent : Ms.Anna Mathew

:ORDER



This writ petition is directed against the order of the Labour Court, Tirunelveli, in I.D.No.576 of 1992 dated 14.7.1994. The Management is the writ petitioner.

2. According to the management, the second respondent herein, the employee indulged in riotous and violent behaviour on 30.9.1991 at about 7.15 a.m. before the gate of the Mill. The second respondent and two other workers had beaten the co-workers and caused injuries. While the second respondent and two other workers belong to C.I.T.U., Velu belongs to D.M.K.Union. There appears to have been some misunderstanding between the members belonging to the said Unions which had resulted in the alleged violation on the part of the second respondent. This resulted in the management issuing charge-memo and suspension order to the second respondent on 3.10.1991. An explanation was submitted on 11.10.1991 which was found to be unsatisfactory to the management. An enquiry was conducted. The Enquiry Officer held that all the charges were proved against the second respondent. A second show-cause notice was issued to the second respondent on 22.11.1991 calling upon him to show cause why he should not be dismissed from service. However, the second respondent did not submit any explanation and hence the management terminated the services of the petitioner. According to the management, there was overwhelming evidence to substantiate violent and riotous behaviour on the part of the second respondent. However, the Labour Court while entertaining the Industrial Dispute as raised by the second respondent, came to the conclusion that there was no acceptable evidence to show that the second respondent had violently behaved with the said Velu and that considering that the said Velu himself having withdrawn the complaint, the charges have to be held as not proved; with the result, the Labour Court directed reinstatement of the second respondent. Hence, the above writ petition.

3. Learned counsel for the petitioner/management contends that there was full-fledged enquiry and after due enquiry the second respondent was found guilty. The only circumstance of the complainant Velu having chosen to withdraw the complaint, cannot lead to presumption that the charges against the second respondent had not been proved. The observations of the Labour Court as regards the findings rendered by the Enquiry Officer as regards the merits of the evidence and the conclusions arrived by him, were perverse. Learned counsel would further submit that riotous and violent behaviour was a serious misconduct and punishment of dismissal from service was not in excess or disproportionate. In this context, reliance is placed on the judgment of a Division Bench of this Court in SOUTH INDIA SUGARS LTD. v. FIRST ADDL. LABOUR COURT, MADRAS,(1989 (II) L.L.N., 1044).

4. Ms.Anna Mathew appearing for the second respondent would however, contend that there was absolutely no perversity in the findings rendered by the Labour Court and therefore no interference was warranted. The Labour Court was justified in taking into account the withdrawal of the complaint by the said Velu and there being no further direct evidence to implicate the second respondent, the findings rendered by the Labour Court are justified. Reference is made to the judgment of the Supreme Court in AGNANI v. BADRI DAS & ORS. (1963 (I) L.L.J., 684) in support of the contention that in order to justify issue a writ of certiorari, it would be proper for the Court to interfere only if there was error of law which would justify interference. The writ court cannot assume the jurisdiction of an Appellate Court while issuing writs under Article 226 of the Constitution of India.

5. Learned counsel for the second respondent further contends that the misconduct as projected against the second respondent, was not an enumerated misconduct under the Standing Orders and hence the charges themselves were not entertainable. In support of this submission learned counsel relies on the following judgments:-

(i) GLAXO LAB. (I) LTD. v. LABOUR COURT, MEERUT & ORS. (1984 (I) L. L.J.,16) (S.C.).

(ii) J.DHANARAJ v. T.N.ELECTY. BOARD (1995(1) L.L.N.,1198) (D.B.).

6. Learned counsel also relies on the observations in the judgment of the Supreme Court in 1963(I)L.L.J., 684, supra, to the effect that incidents relating to a private dispute between one employee and another employee was beyond the disciplinary jurisdiction of the employer. In the present case, according to learned counsel, the dispute was really between one employee and another employee and hence not within the disciplinary jurisdiction of the management.

7. In reply, learned counsel for the petitioner states that the employee had never raised any objection in the context of the charges not being one of the enumerated charges under the Standing Orders and the said objection cannot be entertained. He would further point out that the finding of the Labour Court to the effect that there was no evidence on record that Velu was beaten by some persons, was a perverse finding considering that witnesses had been examined in the Domestic enquiry.

8. I have considered the submissions of both sides. The following are the charges framed against the second respondent:- "The Gravamen of the charges are as hereuner: i) That on 30.9.91 at about 7.15 a.m. before the mill gate, the delinquent petitioner has caught hold of the shirt of the co-worker S. Velu and further punched in the left side chest of Velu and thereby caused (Conclusion) inside injury to Velu.

ii) that doubling department worker M.Sankarraman has asked the coworker Velu, how could he uttered indecent remarks against our president Shanmugavelayutham and further hit in his nose with stone and caused blood injury. The delinquent petitioner has helped M.Sankarraman for the said violent act. Iii) that carding department worker Daniel Chelladurai has caught hold of the shirt of the co-worker S.Velu and further punched in the right side chest of Velu and there by caused inside injury to Velu. The delinquent petitioner has helped Deniel Chelladurai for the said violent act. iv) That his above said act, is unlawful and violation of Rules. v) By his abovesaid act, he has created chaos among the workers and frightened the other workers.

vi) By his abovesaid act, the reputation of the management is spoiled. vii) By his abovesaid act, the management has lost confidence in him. viii) By his abovesaid act, the moral and discipline among the workers in undermined."

It is true that there is no specific reference to any Standing Order. But it is not disputed that violent and riotous behaviour is covered under Clause 24(k) of the Standing Orders which is to the following effect:- "Drunkenness or riotous or disorderly behaviour during the working hours or any act subversive of disciplinary and or efficiency."

9. I am unable to agree with the contention of learned counsel for the second respondent that the dispute was only between two workers and that it had taken place outside the premises of the mill, and hence cannot be a subject matter of any disciplinary proceeding. This is not a case of assault between the workers on their private affairs. Admittedly, the assault related to union activities. As regards the place of occurrence, Standing Order 24-K does not refer to any geographical or territorial limitations. It is not difficult to perceive of situations where the misconduct of an employee could take place outside and far away from the premises. The test is whether the conduct affects or tends to affect the establishment. In the present case, the occurrence had taken place just in front of the gate of the Mill and therefore, I do not find any substance in the contention that the dispute related to some private affairs between one employee and another and that the occurrence having taken place outside the premises, cannot be subject matter of any disciplinary proceeding. In fact, in the judgment of the Supreme Court in DELHI CLOTH GENERAL MILLS v. ITS WORKMEN (1969 (II) L.L.J., 755), the Supreme Court held that one may envisage several acts of misconduct not directly involving the management and financial loss to the management, but which are destructive of discipline and thus cannot be tolerated. The dispute between the second respondent and the victim was a matter directly referable to the Labour Unions/Work force of the Company namely, rivalry between one Trade Union and another Trade Union and has impact on the affairs of and maintaining discipline in the establishment. In the very same judgment, it has also been observed that the misconduct may relate to acts of violence against the management or other employees in or near the place of employment, would be conducive of grave indiscipline.

10. In the present case, the approach of the Labour Court has to be termed as perverse as regards the finding that there was no evidence of violence on the part of the second respondent. The Tribunal appears to rely on the only circumstance that the victim Velu had chosen to withdraw the complaint. Withdrawal of complaint was due to a compromise or understanding between the second respondent and the victim on their own whereby the said Velu withdrew the complaint before the Police as well as the complaint before the management. At the same time, the said victim had deposed in the domestic enquiry regarding the assault on him. The mere fact that as a co-worker he had chosen to withdraw the complaint, cannot result in preventing the management from taking appropriate action for the misconduct. The observation by the Labour Court that there was no evidence that the victim was beaten by some persons, is a perverse finding and in total disregard of the evidence before the enquiry proceedings. The mere fact that the second respondent and the other co-worker had chosen to compromise the issue between themselves cannot result in the Labour Court recording a finding that there was no proof of occurrence. In fact, it is a special pleading by the Labour Court considering that there is no serious denial of the incidents on the date of occurrence.

11. Therefore, to the extent of the finding of the Labour Court that the charges against the petitioner has not been established, I am inclined to hold that the said finding has no basis, perverse and amounts to an error of law on the face of the record and is thus liable to be set aside.

12. Now coming to the question of quantum of punishment, I am inclined to hold that the order of dismissal is highly disproportionate to the nature of the allegations against the second respondent. Both the said Velu as well as the second respondent are only Last Grade employees and when the quarrel took place they appear to have been highly emotional in the context of their involvement with the respective Unions. What had happened was only a result of momentary provocation between themselves and I do not think that the delinquency requires serious punishment of dismissal from service. In this context learned counsel for the petitioner referred to the judgment of the Division Bench in SOUTH INDIA SUGARS LTD. v. FIRST ADDL. LABOUR COURT, MADRAS (1989 (II) L.L.N., 1044) supra, in which the Division Bench of this Court held that assault on a security guard amounted to a grave and serious misconduct justifying dismissal from service. That was a case of assault on security personnel and the present case cannot be compared to the facts relating to the said judgment. This is also not a case of any Subordinate staff assaulting or abusing a superior staff which may amount to an act of serious insubordination and indiscipline. Therefore, I am inclined to hold that this is not a case which would warrant the extreme punishment of dismissal from service.

13. On facts, it is found that the second respondent was dismissed from service on 19.12.1991 and subsequently reinstated in service on 19.11.1994, after the award of the Labour Court. Therefore, while I am inclined to uphold the finding of guilt recorded against the worker by the management, the ends of justice would be met by reducing the punishment by ordering that he will not be entitled to the backwages between 19.12.1991 and 19.11.1994 and the same would be treated as adequate punishment to the second respondent.

14. In the result, the writ petition is allowed subject to the modification of the penalty to one of reinstatement without backwages for the period between 19.12.1991 and 19.11.1994. No costs. Index:Yes. 19.07.2002 Internet:Yes.

sai/-

To

The Presiding Officer,

Labour Court,

Tirunelveli.

K.P.SIVASUBRAMANIAM,J.

Order in

W.P.No.8912 of 1995




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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