M.Ganesan Vs The Management of Hyundai Motor… — Labour and Industrial Disputes | Madras HC (2020)

M.Ganesan Vs The Management of Hyundai Motor… — Labour and Industrial Disputes | Madras HC (2020)

W.P.No.17275 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 24.11.2020

Pronounced on : 03.12.2020

CORAM:

THE HON'BLE MR. JUSTICE R.SURESH KUMAR

W.P.No.17275 of 2019
M.Ganesan ........ Petitioner
-vs-
The Management of Hyundai Motor India Limited
Plot No.H-1, SIPCOT Industrial Park,
Irungattkottai,
Sriperumbudur – 602 105. ........ Respondent

Writ petition filed under Article 226 of Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the Order in Approval Petition No.22 of 2010 in I.D.No.418 of 2007 on the file of the III Additional Labour Court, Chennai, dated 03.04.2018 and quash the same in so far as the approval granted for dismissal of the petitioner in respect of the Charge Memos of the respondent, dated 07.04.2009 and 08.06.2009 and consequently direct the respondent to reinstate the petitioner in service.

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For Petitioner : Mr.S.Prabhakar, Senior counsel for Mr.C.K.M.Appaji For Respondent : Mr.S.Ravindran, Senior counsel for M/s. Sai Raaj Associates

ORDER

The prayer sought for in the writ petition is for a writ of certiorarified mandamus calling for the records pertaining to the order in Approval Petition No.22 of 2010 in I.D.No.418 of 2007 on the file of the III Additional Labour Court, Chennai, dated 03.04.2018 and quash the same insofar as the approval granted for the dismissal of the petitioner in respect of the charge memos, dated 07.04.2009 and 08.06.2009 and consequently direct the respondent to reinstate the petitioner in service.

The short facts which are required to be noticed for the disposal of

this writ petition are as follows :

(i) that the petitioner was appointed as Technician at the respondent company on 03.08.1999, thereafter he was promoted and confirmed as Technician in body shop. The company is a multi national company

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engaging in the manufacture of automobiles. They set up a car factory at Sriperumbudur in Kancheepuram District, Tamil Nadu in the year 1996.

(ii) Since there was no employees or trade union in the respondent

company, some of the employees started forming a employees union called Hyundai Motor India Employees Union on 08.07.2007 and they got it registered under the Trade Unions Act, 1926. The petitioner was elected as a

Vice-President of the Union.

(iii) Since the President and General Secretary of the Union had been

shifted or transferred by the management to Mumbai and Calcutta and this was considered to be a unfair labour practise as hitherto there was no such transfer on all India basis had been given by the management, challenging the malafide order of transfer of the General Secretary and the President of the Union, they raised a Dispute before the Assistant Commissioner of Labour, Chennai, where the conciliation efforts ended in failure, therefore the Government of Tamil Nadu had referred the issue of transfer to the first

respondent as I.D.No.418 of 2017.

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(iv) When the said I.D was pending before the Labour Court,

disciplinary proceedings were initiated against the petitioner, on the ground that, he had been unauthorisedly absent for duty for the period between 27.11.2008 and 08.01.2009, accordingly, charge memo was issued on 08.01.2009.

(v) Subsequently also yet another charge memo was issued against the petitioner for the similar charge on unauthorised absent for the period from 09.01.2009 to 09.03.2009. In respect of the first charge, enquiry was conducted, where according to the petitioner he had produced the medical certificate for having absented for duty due to his illness. Nevertheless the Enquiry Officer had concluded that, the charge framed against the petitioner in the first charge memo was proved and accordingly, he filed an Enquiry Report on 03.04.2009.

(vi) Insofar as the second charge memo also, since the petitioner met with an accident and he suffered injury and in this regard he had gone to his

native place for taking country treatment and subsequently also he had taken

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allopathic treatment and though all these supporting medical documents having been filed on behalf of the petitioner, in the second enquiry also, the Enquiry Officer found that, the charges framed against the petitioner for unauthorised absent was proved and accordingly, he filed a report on 16.05.2009.

(vii) In the meanwhile, on 15.05.2009, during the evening hours, there was a wordy quarrel between the petitioner and another co-worker one Jayaprakash, with the result, according to the petitioner, he was beaten or assaulted by the said Jayaprakash and pursuant to which, immediately he had rushed to the hospital, i.e., Ramachandra Medical College Hospital at Porur, Chennai, where he was admitted as an inpatient. During the treatment he was taking, the concerned police had visited the hospital and took statement on 17.05.2009, pursuant to which, an FIR was registered on the file of the Sriperumpudur Police Station, where the FIR was filed on the complaint of the petitioner against the said Jayaprakash and others for the alleged offences punishable under Sections 294 and 324 IPC, where the investigation was pending

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(viii) However, according to the petitioner, the respondent

management had issued third charge memo, dated 08.06.2009 stating that,

on 15.05.2009, during the said incident, the petitioner allegedly beaten or assaulted the said Jayaprakash and based on which, the petitioner was placed under suspension, by order, dated 18.05.2009 and accordingly, a charge memo, dated 08.06.2009 was issued.

(ix) In respect of the third charge also there was an enquiry conducted, where, even though the petitioner sought for permitting the petitioner to have the legal assistance, since the Enquiry Officer was a legal person that opportunity was denied to him and even though he had given medical evidences to establish that, he was sustained injuries at the hands of the said Jayaprakash on the particular incident, dated 15.05.2009, those evidences filed in support of the petitioner was not taken into account and only on the basis of the oral evidence made on behalf of the management that too, by the very same Jayaprakash and another employee, the Enquiry Officer had concluded that, the third charge, dated 08.06.2009 also had been proved against the petitioner and accordingly, he gave a report to that effect on 10.10.2019.

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(x) Pursuant to the said charges and the Enquiry report respectively filed in the three enquiries, the respondent management issued a second show cause notice respectively and after getting the explanation from the petitioner insofar as the third charge is concerned, they decided to inflict the maximum punishment of termination of service, accordingly, by order, dated 09.11.2010, the services of the petitioner was terminated, i.e., the

petitioner was dismissed from service.

(xi) Insofar as the said order of dismissal of service is concerned, since it had to be obtained the approval of the Labour Court, where, since the issue was pending in I.D.No.418 of 2007, Approval Petition No.22 of 2010 was filed by the respondent management and the said petition was allowed by the Labour Court erroneously, by the impugned order, dated 03.04.2018. Therefore aggrieved over the same, the petitioner workman has filed the present writ petition with the aforesaid prayer.

The case of the respondent was that, insofar as the unauthorised

absent for two period, separate charge memos were issued and separate

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Enquiry Officer were appointed, where due opportunity was given to the petitioner and after giving all such opportunity, enquiry was concluded and according to the Enquiry Officer's Report in both the charges, i.e., in both the enquiries, respective charges framed against the petitioner were proved, based on which by supplying the copy of the Enquiry Officer's Report, second explanation was called for by issuing the second show cause, for which the petitioner also had given reply. Insofar as the third charge pertaining to the occurrence taken place on 15.05.2009, it was a very serious charge, where the petitioner not only had picked up quarrel with the coemployees but also had assaulted the employees by making bodily injury and the same was confirmed by eye witnesses who deposed in clear terms before the Enquiry Officer, who on considering the oral as well as the documentary evidences putforth by the management before the Enquiry Officer had come to a conclusion that, the charge in respect of the third enquiry made against the petitioner also was proved.

In view of the said three charges in respect of three enquiries

having been proved against the petitioner, where after giving the second

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show cause notice also, the management decided to inflict the punishment of dismissal of service as per the certified standing orders of the company and accordingly, the punishment was proposed.

Though it was not necessitated to get an approval, as the main issue pending in I.D.No.418 of 2017 pending before the Labour Court, was not related to the petitioner, still as an abundant caution, the Approval Petition No.22 of 2010 was filed by the management, where also, the Labour Court, having elaborately heard and discussed the relative merits of the cases of both the petitioner as well as the respondent management, having dealt with each of the proven charges in respect of three separate enquiries, has come to a right conclusion that, there has been absolutely no infirmity in the manner in which enquiry was conducted in three occasions, i.e., in the three enquiries and therefore, with the limited scope of adjudicating the prima facie of the enquiry conducted in this regard by the management to come to

a conclusion that, the erring employee / workman is liable to be punished, i.e., termination of service, the Labour Court has come to the conclusion

that, such a move on the part of the management can be justifiable and

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accordingly, given the approval for such move of the management to inflict the punishment of dismissal of service against the petitioner and accordingly, the Approval Petition was ordered by the Labour Court through the impugned order, dated 03.04.2018, therefore the same does not require any interference, the respondent contended.

Based on these facts as projected by both sides, Mr.S.Prabhakar,

learned Senior counsel appearing for the petitioner has contended that, insofar as the first two charges dealt with in the first two enquiries are concerned, it relates to the unauthorised absence. Insofar as the absence in the particular period as has been noted in the said charges are concerned, though the petitioner could not attend the factory on the particular dates, that was due to his sufferance on the health, i.e., because of his ill-health and in this regard, series of medical documents and certificates had been produced by the petitioner.

According to the learned Senior counsel, those medical documents

have not been considered by the Enquiry Officers and they mechanically

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concluded the enquiry by stating that, the charges framed against the petitioner was proved. Assuming that, the charges in respect of Charge No.1 and 2 in the two separate enquiries were proved, whether that would amount

to draw a maximum punishment of removal of service, is yet another question, he contended.

The learned Senior counsel insofar as the third charge and enquiry is concerned has vehemently contended that, it is absolutely ridiculous to contend that, the charges framed against the petitioner in the third enquiry has been proved. In this context, further elaborating his arguments, the learned Senior counsel would contend that, on 15.05.2009, there seems to

had been a wordy quarrel between the petitioner and the employee, one Jayaprakash, resultantly the said employee Jayaprakash assaulted the petitioner and with the result, he sustained injuries, therefore immediately he rushed to the hospital, where he was admitted as an inpatient and in this regard, medical reports are readily available, where he had taken a treatment for more than one week and he had been discharged only after a week's

treatment only in the Hospital as an inpatient. He would further submit that,

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during the treatment he was taking in the hospital, the petitioner was enquired by the concerned police on 17.05.2009, where, after taking the statement from the petitioner, the police had registered a case by registering an FIR against the said Jayaprakash and few others that they assaulted the petitioner and accordingly, the said criminal case was pending for

investigation.

In this context, the learned Senior counsel would further contend that, though such an incident had been taken place on 15.05.2009, where the petitioner was suffered at the hands of some co-workers, especially one Jayaprakash and others, the management had projected a case as if that, the petitioner assaulted Jayaprakash. In this regard, he would further submit that, absolutely there was no evidence to show that, the petitioner had assaulted the said Jayaprakash. Merely because one of the co-worker had deposed before the Enquiry Officer orally, that was taken as a basis by the Enquiry Officer, whereas the very same Enquiry Officer had omitted to take the oral evidence given in support of the petitioner, who himself also had

been examined and one more witness was also examined on behalf of the

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petitioner. He would also submit that, apart from the oral evidence, the petitioner had clinching documentary evidence, i.e., medical documents as well as the document pertaining to the FIR registered at the first instance and therefore the said documents which were very crucial and clinching to establish the case of the petitioner had been unfortunately discarded or omitted to take into account both by the Enquiry Officer and by the Labour Court and therefore in this context, they completely misdirected and failed

to appreciate the evidence putforth on behalf of the petitioner.

Therefore the learned Senior counsel would contend that, insofar as the third charge, pursuant to the incident taken place on 15.05.2019 is concerned, it is absolutely nothing where, no charge as has been framed against the petitioner has been proved with any supporting documents and in fact, the petitioner was victimized merely because he was involved in the trade union activities and therefore, the approval now given by the Labour Court without appreciating all these aspects in the Approval Petition No.22 of 2010 by impugned order, dated 03.04.2018 is totally unjustifiable and unsustainable, therefore the same is liable to be interfered with, the learned Senior counsel for the petitioner contended.

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However, on the other hand, Mr.S.Ravindran, learned Senior counsel appearing for the respondent management would contend that, insofar as the petition filed under Section 33(2)(b) of the Industrial Dispute Act, 1947 is concerned, the Labour Court need not go into all aspects in detail to appreciate the evidence on every aspect, as if to be done in enquiry under Section 2(A)(ii) viz-a-viz Section 11A of the Act. In a petition under Section 33(2)(b) of the Act, the Labour Court is expected to verify whether

the domestic enquiry conducted in this regard by the employer was fair enough or in fair manner to accept that the enquiry was conducted without violating the principles of natural justice.

Once the domestic enquiry conducted by the employer is found to

be a fair one, where the principles of natural justice is not violated, then

there could be no other option except to give approval sought for by the management to terminate the services of the erring employee, against whom definite charges have been proved.

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In that context, the learned Senior counsel appearing for the

respondent management has taken pain to take this Court to various discussion made by the Labour Court in a lengthy Judgment which is impugned herein. Also the learned Senior counsel has taken this Court to the findings given by the Enquiry Officer, especially, in the case of the third enquiry, where, after having given all necessary opportunity to the petitioner, the enquiry was conducted and completed, where the Enquiry Officer has taken the oral as well as the documentary evidence submitted by both sides and in this regard, the oral evidence made on behalf of the management, corroborating each other. In support of the subsequent event, where the said Jayaprakash, who was assaulted by the petitioner got admitted in an hospital oral evidences were available and therefore all these issues would coherently go to show that, there was an incident on 15.05.2009, where the petitioner had picked up quarrel with the coemployee and with the result, he assaulted him, whereby the employee who sustained injuries after having taken first aid, had, next day, went to the hospital and got treatment and these aspects had been taken into account by

the Enquiry Officer and accordingly he had come to the conclusion that, the

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charge made against the petitioner in the third enquiry with regard to the incident taken place on 15.05.2009 in the factory premises was proved.

The learned Senior counsel would also contend that, insofar as the

domestic enquiry or departmental proceedings are concerned, the decree of proof is not the one expected to be beyond reasonable doubt, it is only on

the basis of preponderance of probability. When that being so, the clear evidences both orally as well as document wise produced on behalf of the management have undoubtedly proved the case of the management that, the charges made against the petitioner had been proved and this has been rightly considered and concluded by the Enquiry Officers who gave the detailed report, based on which, since the charges proved against the petitioner was serious in nature, the management had decided to inflict the maximum punishment of removal of service on the petitioner which is in accordance with the certified standing orders of the company.

The learned Senior counsel would further contend that, the said

aspects having been gone in to by the Labour Court exhaustively and in

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detail, it ultimately concluded that, the enquiry conducted in three occasions in respect of three separate charges have been conducted in a fair manner, where all opportunities were given to the petitioner and therefore there could be no impediment for the management to proceed with the inflictment of punishment against the petitioner and accordingly, the punishment was approved by the Labour Court through the impugned order and hence, he prays that, no interference is called for or warranted against the said order in

the Approval Petition, hence, he seeks dismissal of the writ petition.

I have considered the said rival submissions made by the learned

counsel appearing for the parties and have perused the materials placed before this Court.

Insofar as the first two charges, namely the charges of unauthorised absence between the period 27.11.2008 and 08.01.2009 as per the charge memo, dated 08.01.2009 and the second charge for the period 09.01.2009 and 09.03.2009 as per the second charge, dated 07.04.2009 are

concerned, in both the cases, after having gone through the materials filed

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before this Court, this Court find that, the petitioner admittedly had been absent in those days mentioned in the charges and insofar as the said absence are concerned, it is the defence on the side of the petitioner to state that, he met with an accident or he suffered with some illness and in this regard, he claimed to have produced medical certificates.

However, on going through the findings given by the Enquiry Officers in these two charges are concerned, in the Enquiry Officer's Report, dated 03.04.2009 and 16.05.2009, it is found that, the petitioner in fact has accepted that, during the particular period he was absent and that absence was due to his ill health and also on the other reasons and therefore the same can be condoned and he further stated that, in future he would not be such absentee unauthorisedly. Therefore this Court does not find anything in favour of the petitioner, insofar as the first two charges are concerned and

therefore, in this regard, the conclusion arrived at by the Enquiry Officer that, the charges framed against the petitioner were proved and also the conclusion arrived at by the Labour Court in respect of these two charges are justifiable, therefore in respect of those two charges, the finding given

by the Labour Court need not require any interference from this Court.

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However, insofar as the third charge is concerned, pertaining to the incident taken place on 15.05.2009, in charge dated 08.06.2019, I have perused the Enquiry Officer's Report, dated 10.10.2019, before which the learned Senior counsel appearing for the petitioner has pointed out that, on 15.05.2019 itself, the petitioner was admitted in Sri Ramachandra Medical College Hospital, where he was admitted as an inpatient and he had taken treatment for seven days and more and was discharged only on 27.05.2009. In this regard, the discharge summary issued by the hospital concerned, namely Sri Ramachandra Medical Centre, Chennai has given the following : “Patient came with the complaints of pain over the right shoulder for which he was evaluated. CT was done and found to have a linear fracture transversing through the inferolateral segment of the clavicle in the previously malunited fracture site. Bone scan report suggest increased blood pooling in the region of right clavicle and delayed increase tracer concentration in the mid right clavicle and could be due to fracture bone remodeling or secondary to previous history of malunion. He had complaints of right ear discharge, for which Dr.Sanjeev Mohanty opinion obtained and diagnosed to have right side granular myringitis with

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otomycosis. Patient was treated conservatively. Now patient fells comfortable and hence being discharged today.”

This medical report substantially discloses that, the petitioner

while came to the hospital on 15.05.2009, had come with a complaint of pain over the right shoulder, for which he was evaluated and the CT scan done which found to have a linear fracture transversing through the inferolateral segment of the clavicle in the previously malunited fracture site. The report further states that, the patient was treated conservatively and discharged.

During the treatment the petitioner taken at the hospital for more

than a week, on 17.05.2009, the Inspector of Police, Sriperumbur Police Station visited the hospital and has taken statement from him. Based on the said statement, FIR has been registered in F.I.R.No.275 of 2009 on 17.05.2009 against Jayaprakash and three others for the alleged offences punishable under Sections 294 and 324 IPC.

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These crucial documents seems to had been filed by the petitioner before the Enquiry Officer. However the Enquiry Officer has dealt with the same in the following fashion :

“nkYk; Fw;wk; rhl;lg;gl;ltuhd vk;/fnzrid

Fwf;F tprhuiz bra;j nghJ. jh';fs; b$a;gpufhic& jhf;fpajhy; mth; KjYjtp rpfr;irf;Fg; gpwF mg;gy;nyh I Med cwh!;gpl;lypy; cs;nehahspf;F rpfpr;ir bgwntz;o ml;kpl; Mdjw;fhd rhd;wpjH;fis Vw;fdnt b$a;gpufhc&; ,e;j tprhuizapy; jhf;fy; bra;Js;shh;. ,jw;F ck; gjpy; vd;d? vd;W eph;thfg;gpujpepjp nfl;ljw;F Kjd; Kjypy; ghjpf;fg;gl;L. KjYjtp vLj;J. ,uhkr;re;jpu kUj;Jfidapy; cs;nehahspahf 7 ehl;fshf ,Ue;njd;. mjw;fhd Mjhu';fis ,';F Mtzkhf vLj;Jf; bfhs;s nfl;Lf;bfhs;fpnwd;. ehd; jhf;fpajhff; Twk; b$a;gpufhc&; Kjypy; KjYjtpf;Fr; bry;ytpy;iy/ mg;gy;nyh M!;gpl;lYf;Fk; vdf;F gpd;g[ jhd; rpfpr;ir bgw te;Js;shh;/ Vbddpy; jk;kPJ gpur;rid te;Jtplf;TlhJ vd;gjw;fhf mtnu ngha; ml;kpl; Mfp cs;shh;/ ,e;j gjpypy; ,Ue;nj v!;/b$agufhc&; KjYjtp bgw;wJk; mg;gy;nyh

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kUj;Jtkidapy; rpfpr;ir bgw;wJk; cz;ikahfpwJ/ 15/05/2009 md;W ,ut[ rk;gtj;jw;fhd fhak; Vw;gl;l b$a;gpufhc&; mLj;j ehns 16/5/2009 rpfpr;irf;fhf kUJ;Jtkidapy; cs;nehahspahf ml;kpl; Mfp cs;shh;/ nkYk ; 15/05/2009 vk;/fnzrd; bjhHpw;rhiyf;Fs; v!;/b$a;gpufhic& jhf;fpajw;fhd tptu';fs; jkJ g[fhhpYk; thf;FK:yj;jpYk; Mjhuj;Jld; b$a;gpufhc&; bfhLj;Js;shh; mUfpy; ,Ue;j Mh;/brhf;fyp';fk; jk;Kila rhl;rpaj;jpYk; b$a;gpufhic&. vk;/fnzrd; jhf;fpa[s;sjhf rhl;rpak; mspj;J. Fwf;F tprhuizapYk; cWjp bra;Js;shh;/”

On a reading of the said finding given by the Enquiry Officer, it discloses that, when the petitioner deposed before the Enquiry Officer stating that, he was sustained injury at the hands of Jayaprakash, for which he admitted in the hospital on 15.05.2019 as inpatient and had taken

treatment for seven days and in order to support the same, he had filed those documents before the Enquiry Officer, however, thereafter only, the said Jayaprakash, next day admitted in another hospital with an intention to

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cover up the mistake and to escape from the clutches of law. When this kind of deposition was made by the petitioner, the same has been interpreted by the Enquiry Officer stating, that, from the said deposition of the petitioner, it has been confirmed that, the Jayaprakash after getting first aid was admitted

in another hospital on 16.05.2009 as inpatient.

The statement made or deposition given by the petitioner to establish his case before the Enquiry Officer was taken in the aid of or in

support of the case of the management, thus obviously the Enquiry Officer failed to take note of the clinching evidences, i.e., medical documents,

which we have referred to above, filed by the petitioner in support of the petitioner's case.

In this context, why those documentary evidences in support of

the petitioner's case has not been considered and were discarded by the Enquiry Officer has not been spelt out in his report.

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That apart, it has further been recorded by the Enquiry Officer that, insofar as the petitioner's side evidence is concerned, one Deenadayalan, a co-technician of the body shop of the respondent management was examined, who have given the oral evidence that, he saw the Jayaprakash beaten the petitioner. This has also been recorded by the Enquiry Officer, however he has simply stated that, the said Deenadayalan had only stated that, he saw Jayaprakash beaten the petitioner, however, on 29.08.2009, the petitioner had given a statement, where he had not stated

this. Therefore the said oral evidence made on behalf of the petitioner, in support of the case of the petitioner, was also discarded by the Enquiry Officer.

Whereas the very same Enquiry Officer in respect of the oral

evidence given by Jayaprakash and one Chockalingam both had deposed on

behalf of the management, had been fully accepted.

Therefore, these aspects of the Enquiry Officer's Report would

clearly disclose that, the Enquiry Officer, while giving credence to the oral

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as well as documentary evidence on the management side has refused to or omitted to give such credence to the petitioner's side evidence and in fact, the very supportive documentary evidence filed by the petitioner's side, where the petitioner was able to prove that, he had been admitted in the hospital for his bodily injury on 15.05.2009 itself, where he had taken treatment as inpatient in the hospital and the Doctor's report, as quoted above, discloses this factor, had been purposefully omitted to be taken into consideration or discarded by the Enquiry Officer for the reasons best known to him.

If we look at this fashion of enquiry conducted by the Enquiry

Officer and the appreciation of the evidence submitted by both management side as well as the petitioner side, no prudent man would accept the said enquiry conducted by the Enquiry Officer in the third enquiry pertaining to

the incident, dated 15.05.2019 was conducted in a fair and proper manner and therefore on that ground itself, this Court feel, that the conclusion arrived at by the Enquiry Officer with regard to the third charge as if has been proved against the petitioner, is not a justifiable one and therefore it is liable to be rejected.

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However, the Labour Court, in the order impugned, in respect of the Enquiry Officer's Report and the conclusion reached by him pertaining to the third charge also, has simply brushed aside the lacuna on the part of the Enquiry Officer and he has stated the following :

“48. Considered. In order to effectively decide on the issue of victimisation, tis court is inclined to have a cursory reading of the details of the FIR in page Nos.174 and 175 of the typeset submitted by the management, and also the statement of the respondent given to the Enquiry Officer on 29.08.2009. The said FIR has been registered by the Sriperumbudur police on the statement of the respondent recorded by them at Ramachandra hospital, on the workman Jayaprakash and three others, u/s 294(b) and 324 IPC on 17.05.2009, for the occurrence happened in the factory premises on 15.05.2009. In the said FIR, it has been stated by the respondent that, he has been assaulted by Jayaprakash, Gopalakrishnan, Anna Arivan and Senthil Kumar. On the other hand, as per the statement of the respondent dated 29.08.2009, it has been stated by him that, on 15.05.2009 in the second shift, he went and searched for the

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Engineer Senthil Kumar in various departments, but he was unable to meet him and when he went to attend his duty in the body shop, the workman Jayaprakash attacked him with beam bar on his head and also punched him on his nose. Apart from the attack by Jayaprakash, the respondent has not mentioned any other name in the said statement.

From the above facts, this court is of the view that, when the respondent himself has taken a contra stand and leveled charges not only on Jayaprakash, but also on the other three employees too including one superior that they too assaulted him, it cannot be said that the management has acted as against the interest of this respondent and victimized him. Further, the respondent has not produced any single record to show that he is a member of any particular union and only for union activities, he has been victimised by the management. Unless these prima facie records, this court cannot accept the defence of the respondent that, he has been victimized by the management of his union activities.

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Based on the above facts and circumstances, this court is of the considered view that, in respect of this third set of domestic enquiry, this court cannot notice any irregularity in the enquiry proceedings or victimization by the management.”

Why the Labour Court has not appreciated the evidence putforth

on behalf of the petitioner pertaining to the incident taken place on 15.05.2009 which includes the medical documents as well as the copy of the FIR, dated 17.05.2009. The reason stated by the Labour Court by quoting 29.08.2009 statement of the petitioner that, he has taken a contradictory stand which is only a justification, just for the sake of justification in support of the management case and therefore, in this regard, the Labour Court also erred in appreciating the real position, where the Enquiry Officer has failed to take into account the acceptable evidence, which was available before him filed on behalf of the petitioner. Therefore, this Court feel that, the Labour Court also has completely failed in this aspect in accepting the case of the management that the enquiry was conducted in a fair manner, even in respect of the third enquiry also.

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In this context, Mr.S.Ravindran, learned Senior counsel appearing

for the respondent management has relied upon the Judgment of the Hon'ble

Supreme Court in John D'souza v. Karnataka State Road Transport Corporation, reported in 2019 SCC Online SC 1347 , where the learned

Senior counsel has relied upon the following passages :

“24. Section 33(2) (b) of the Act, thus, in the very nature of things contemplates an enquiry by way of summary proceedings as to whether a proper domestic enquiry has been held to prove the misconduct so attributed to the workmen and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice. As a natural corollary thereto, the Labour Court or the Forum concerned will lift the veil to find out that there is no hidden motive to punish the workman or an abortive attempt to punish him for a non- existent misconduct.

The Labour Court/Tribunal, nevertheless, while holding enquiry under Section 33(2)(b), would remember that such like summary proceedings are not akin and at par with its jurisdiction to adjudicate an `industrial dispute’ under Section 10(1)(c) and (d) of the Act, nor the former provision clothe it with the power to

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peep into the quantum of punishment for which it has to revert back to Section 11A of the Act. Where the Labour Court/Tribunal, thus, do not find the domestic enquiry defective and the principles of fair and just play have been adhered to, they will accord the necessary approval to the action taken by the employer, albeit without prejudice to the right of the workman to raise an `industrial dispute’ referrable for adjudication under Section 10(1)(c) or (d), as the case may be. It needs pertinent mention that an order of approval granted under Section 33(2)(b) has no binding effect in the proceedings under Section 10(1)(c) and (d) which shall be decided independently while weighing the material adduced by the parties before the Labour Court/Tribunal. ... ... ...

This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima facie case for discharge or dismissal is made out

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on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimisation of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified. That is the precise ratio – decendi of the decisions of this Court in (i) Punjab National Bank, (ii) Mysore Steel Works Pvt. Ltd. and (iii) Lalla Ram’s cases (supra). ... ... ...

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The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act.”

By relying upon the aforesaid Judgment, the learned Senior counsel would contend that, insofar as the petition under Section 33(2)(b) of the Industrial Disputes Act is concerned, it is only a summary proceedings with limited enquiry, where the Labour Court or Industrial Tribunal concerned can look into the matter, as to whether the domestic enquiry was conducted in fair and proper manner and in this aspect, the Labour Court need not go into the aspect of the evidence in deep appreciation, as if to be

done under the adjudicative powers of the Labour Court under Section 11A of the Act. Therefore what has been decided by the Labour Court as to the fairness of the domestic enquiry in the three enquiries conducted by the

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management and the conclusion arrived at is fully justifiable, therefore beyond that, it cannot be expected that, the Labour Court will put further labour in deciding as to the validity and veracity of each and every evidence putforth before the Enquiry Officer and those aspects may not be the subject matter before the Labour Court or Industrial Tribunal, within the meaning of

Section 33(2)(b) of the Act.

Therefore, in support of the case of the management, according to the learned Senior counsel, the aforesaid principle as has been envisaged in the Judgment cited supra of the Hon'ble Supreme Court would come to an aid and therefore applying the ratio, the learned Senior counsel would contend that, the present order passed by the labour Court, which is impugned herein, requires no interference, he contended.

However, this Court feel that, the Judgment cited by the learned Senior counsel appearing for the petitioner, to my mind, would support the case of the petitioner also. The reason being, that if at all the Labour Court

has only limited role to play in deciding the petition under Section 33(2)(b)

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of the Act, where it should be treated only as a summary proceeding and it need not go into all aspects of the evidence adduced by both sides, as if required under Section 11A of the Act, exactly now that has been done by the Labour Court, where the Judgment runs about nearly 22 pages, where very detailed examination of each of the enquiry conducted by the management in respect of the present issue has been dealt with by the

Labour Court.

Insofar as the third set of enquiry is concerned, the Labour Court in para 38 to 50 has given a detailed discussion and finding, where the evidence adduced by the management as well as the petitioner's side was taken into account, where, he has given a finding that, the evidence given on behalf of the management support the case of the management and in this regard, the Labour Court has gone into the extent of giving a finding that, the FIR, dated 15.05.2009 and the medical records, dated 17.05.2009 filed on behalf of the petitioner would support the case of the management.

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These finding given by the Labour Court is not required to be given for the purpose of verifying the fairness of the domestic enquiry conducted by the management, since that is the limited work to be undertaken by the Labour Court in deciding the petition filed under Section 33(2)(b). If beyond which, the Labour Court traverse the issue, certainly that would amount to re-appreciation of evidence under Section 11A of the Act, this was exactly pointed out by the Hon'ble Supreme Court in the Judgment cited above by the learned Senior counsel appearing for the respondent management.

Therefore, this Court feel that, if the principle laid down in the said Judgment cited above applies strictly on the facts of the case, instead of supporting the case of the respondent management, it would support more the case of the petitioner.

Therefore the said decision cited by the learned Senior counsel appearing for the respondent management would not advance the case of the respondent by justifying the reasons given by the Labour Court in coming to such conclusion in the Approval Petition.

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All the aforesaid facts and circumstances as well as the

discussions would clearly disclose that, out of the three charges, in respect of first two charges, the conclusion arrived at by the respective Enquiry Officers, to conclude that the charges framed against the petitioner with

regard to the unauthorised absence, can be accepted to have been proved.

At the same time, insofar as the third charge is concerned, this

Court feel that, there has been evidence mainly in favour of the petitioner, which has been either inadvertently or purposely omitted to be taken into account by the Enquiry Officer which has also been not considered in proper perspective by the Labour Court in the order impugned.

Resultantly, there has been an erroneous decision by the Labour

Court, whereby the approval was given for the maximum punishment of removal of service inflicted against the petitioner, which, this Court feel that, is highly exorbitant and not even proportionate to the proven charges of charges 1 and 2.

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If at all the management wants to punish the petitioner for the proven charges of unauthorised absent, i.e., Charge No.1 and 2, they can do so by giving lesser punishment, as the third charge, in the considered opinion of this Court, has not been proved.

Normally this kind of conclusion may not be arrived at by this Court in a writ petition arising out of the order passed by the Labour Court under Section 33(2)(b) of the Industrial Disputes Act. Here, such a conclusion become inevitable, because, even after this long time, if the petitioner is driven to approach the Labour Court by raising the Industrial Dispute under Section 2(A)(ii) of the I.D.Act, where if evidences are adduced by both sides for consideration of the Labour Court, it cannot be expected that, the Labour Court would rewrite the Judgment contra to what has been already written in the present impugned order. Therefore, that would be greatly detrimental and prejudicial to the interest and career of the petitioner workman, therefore in order to do the complete justice, which could be possible in exercising the powers under Article 226, which is extraordinary jurisdiction of this Court, such a conclusion has been arrived at by this Court.

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Resultantly, this writ petition is decided with the following orders :

(i) that the charges framed against the petitioner, dated 08.01.2009 and 07.04.2009 pertaining to the unauthorised absence for the period between 27.11.2008 and 08.01.2009 and 09.01.2009 and 09.03.2009, as concluded by the Enquiry Officers in their respective report, dated 03.04.2009 and 16.05.2009, can be said to be proved.

(ii) However, insofar as the third charge, dated 08.06.2009 made against the petitioner in connection with the incident taken place on 15.05.2009 at the respondent's factory is concerned, the Enquiry Officer's Report dated 10.10.2009 is unsustainable as the enquiry was not properly conducted or the evidence adduced on behalf of the petitioner's side has not been appreciated or not even taken into account and it has been, in fact, discarded by the Enquiry Officer without any plausible reason. Therefore the said third charge, dated 08.06.2009 cannot be said to be proved against the petitioner.

(iii) The major charge, dated 08.06.2009, out of the three charges, since has not been proved, the major

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punishment of dismissal of service inflicted against the petitioner by order, dated 09.11.2010 cannot be said to be a proportionate punishment, therefore the same is liable to be interfered with. Consequently, the approval given by the Labour Court in Approval Petition No.22 of 2010 in I.D.No.418 of 2007, dated 03.04.2018 also is liable to be interfered with. Accordingly, the said punishment of dismissal of service inflicted against the petitioner, dated 09.11.2010 by the respondent management is set aside. Consequently, the relevant approval given by the Labour Court in Approval Petition No.22 of 2010, dated 03.04.2018 is also set aside.

(iv) However, insofar as the proven charges dated 08.01.2009 and 07.04.2009 is concerned, it is open to the respondent management to inflict some lesser punishment, not the one with dismissal of service, removal from service, termination or compulsory retirement. If such a lesser punishment is awarded to the petitioner, accordingly, his service benefits can also be decided by the management, where, the petitioner, since has been out of service from 2009 till date, cannot seek for any backwages, however

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subject to the lesser punishment as indicated above to be inflicted against the petitioner, he shall be entitled to get reinstatement and continuity of service.

With the above directions, the impugned order is set aside and

accordingly, this writ petition is ordered. However, there shall be no order

as to costs.
03.12.2020
Index : Yes
Speaking order
tsvn

.

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R.SURESH KUMAR, J.

tsvn

Order in
W.P.No.17275 of 2019

03.12.2020

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