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2003 DIGILAW 1697 (MAD)

ASHOK LEYLAND LTD. v. M. RAJAN BABU

2003-10-20

D.MURUGESAN

body2003
JUDGMENT : D. Murugesan, J.—The petitioner-company has approached this Court questioning the award, dated November 17, 1995, made in I.D. No. 382 of 1992. The first respondent was employed as a semi-skilled worker in petitioner-company. A compliant, dated June 29, 1991, was received from one S. Venkatesan, which was marked before the Labour Court as Exhibit M1. In the said complaint, Venkatesan has stated that he (sic) was denied confirmation and for the said purpose he approached one Elango, a trade union leader of a particular political party. Thereafter, a demand was made for a sum of Rs. 10,000 by the first respondent. Though such a demand was made, on various occasions the said Venkatesan paid amounts to the first respondent. Basing upon the said letter, the first respondent was enquired orally and is stated to have submitted a letter of acceptance and the consequential apology for the demand of money. The said letter was marked as Exhibit M3 before the Labour Court. On the basis of the said acceptance letter, the petitioner-company terminated the services of the first respondent without any enquiry. Since there was no enquiry, the Labour Court accorded opportunity to both the petitioner and the first respondent to lead evidence. No witness was examined on behalf of either side and no document witness was examined on behalf of either side and no document was filed on behalf of the first respondent. The petitioner-company filed five documents marked as Exhibits M1 to M5. Considering the documents the Labour Court ultimately came to the conclusion that the order of dismissal without there being any enquiry is illegal and consequently set aside the said order and directed the reinstatement with back wages. This award is questioned in this writ petition. 2. Sri Sanjay Mohan, learned counsel for the petitioner would submit that by letter marked as Exhibit M3, the first respondent employee has accepted the demand and also expressed his apology. Though the said letter is not disputed by the first respondent, the Labour Court went on to consider the said letter with reference to its contents and came to the conclusion that the demand of amount made by first respondent was not for benefit but for somebody else. Though the said letter is not disputed by the first respondent, the Labour Court went on to consider the said letter with reference to its contents and came to the conclusion that the demand of amount made by first respondent was not for benefit but for somebody else. Having given such a finding, the Labour Court ought not to have ordered reinstatement as the mere demand would by itself amount to misconduct and it is irrelevant as for whom such demand was made. The learned counsel would further submit that in any case, it was the specific stand of the petitioner-company that there was loss of confidence in the first respondent and this aspect has not been considered by the Labour Court before directing reinstatement. In support of the said submission, the learned counsel would rely upon the following judgments of the Apex Court and a Division Bench of this Court: i) Air-India Corporation, Bombay Vs. V.A. Rebellow and Another, AIR 1972 SC 1343 . ii) Ruby General Insurance Co. Ltd. Vs. Shri P.P. Chopra, (1969) 3 SCC 653 iii) Engine Valves Ltd. Vs. Labour Court, Madras and another, (1991) 1 LLJ 372 . 3. On the contrary, the learned counsel for the first respondent would submit that the complaint marked as Exhibit M1 itself is doubtful, as the Labour Court did not accept such a complaint in the absence of examination of the complainant, viz., Venkatesan. The Labour Court has also while appreciating the said document relied upon certain corrections made in the said letter to hold that what was demanded was for somebody else benefit and not for the first respondent. The Labour Court has properly appreciated Exhibit M3 and has held that the said letter cannot be construed as a letter of acceptance. Therefore only the Labour Court came to the conclusion that an enquiry ought to have been conducted and in the absence of such an enquiry the order of dismissal is illegal. In so far as the second submission of the learned counsel for petitioner as to the loss of confidence, the learned counsel would submit that the first respondent is only a semi-skilled worker and there is no material available to sustain the plea of loss of confidence, except a mere plea in the counter-affidavit. 4. I have considered the submissions of the respective learned counsel. 4. I have considered the submissions of the respective learned counsel. In so far as the appreciation of evidence by this Court exercising power under Article 226 of the Constitution of India, it is well settled that there is no question of reappreciating the evidence and this Court also should go only on the basis of the materials available before the Labour Court. Keeping the above law in mind, the correctness of the award of the Labour Court should be considered. It is admitted fact that there was no enquiry preceding the order of dismissal. In the absence of any enquiry, both the employee and the employer are still entitled to substantiate and justify the order of dismissal by tendering evidence before the Labour Court to prove the alleged misconduct. This proposition of law settled by the Apex Court in P.H. Kalyani Vs. Air France Calcutta, AIR 1963 SC 1756 and Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, , D.C. Roy v. Labour Court and Ors. 1976 (2) LLN 299 and Ashok Leyland Ltd. v. Labour Court 1988 (1) LLN 302. 5. While such an opportunity is available, the petitioner has not examined any witness, but has marked only Exhibits M1 to M5. On the contrary, the first respondent neither examined any witness nor marked any documents. The Labour Court proceeded to appreciate the documentary evidence more particularly in Exhibits M1 and M3. Exhibit M1 a letter given by one Venkatesan complaining the alleged demand by the first respondent for his confirmation. In the complaint it is stated that he met one Elango, a trade union leader attached to a particular political party and the demand was made by the first respondent. He has also stated that he has paid the amount on various occasions to the first respondent. While appreciating this document, the Labour Court in Para. 7 of the award has found as follows The petitioner is said to have demanded only Rs. 1000 from Venkatesan and the latter claims that he was persuaded to give Rs. 750. It is not stated by Venkatesan specifically as to whether this amount was paid to the petitioner or to said Elango who is said to be a trade union leader and ADMK functionary. It is not as if the petitioner himself promised to get confirmation for Venkatesan if the money was paid to him. 750. It is not stated by Venkatesan specifically as to whether this amount was paid to the petitioner or to said Elango who is said to be a trade union leader and ADMK functionary. It is not as if the petitioner himself promised to get confirmation for Venkatesan if the money was paid to him. The money itself seems to have been demanded only for giving it to the Personnel Officer Subramani. A reading of the letter would only show that petitioner was assured of confirmation through the good offices of Subramani and the ADMK functionary Elango. In the same paragraph the Labour Court has also found as follows. "After all Venkatesan is said to have parted with Rs. 1,750 and this amount is stated to have been received to be paid to the concerned official of the management." 6. From the above finding of the Labour Court, it is clear that there was a demand by the first respondent an he was paid a sum of Rs. 750. However, the Labour Court proceeded further to hold that the said amount was demanded and collected only for the purpose of passing on to the Personnel Officer, Subramani and Elango, a trade union leader and therefore the same would not amount to misconduct. This finding of the Labour Court is totally perverse and is an error of law, since for the purpose of considering as to whether the misconduct is proved or not, it is sufficient if petitioner-company establishes that there was a demand and a portion of the amount was paid to the first respondent. It is immaterial as to whether that amount was collected for the benefit of the first respondent or for somebody else. Therefore, the Labour Court went wrong in ordering reinstatement with back wages only on the ground that there was no enquiry preceding the order of dismissal. Going by the very finding of the Labour Court it is proved at least to the extent that there was a demand by the first respondent and a sum of Rs. 750 was collected. Having come to such a conclusion, the Labour Court, in all fairness, ought to have found that the misconduct was proved and ought not to have ordered reinstatement with back wages. 750 was collected. Having come to such a conclusion, the Labour Court, in all fairness, ought to have found that the misconduct was proved and ought not to have ordered reinstatement with back wages. In that view of the matter, it must be necessarily held that the reasons adduced by the Labour Court for ordering reinstatement with back wages only on the ground that there was no enquiry is totally unsustainable on the face of the finding of the Labour Court that the charge of misconduct is held to be proved to the extent that there was a demand by the first respondent and acceptance of a sum of Rs. 750. Hence, in my considered view, the award of the Labour Court cannot be sustained and is liable to be set aside. 7. In view of the above finding, the next contention raised by the petitioner as to the loss of confidence need not be gone into. 8. For all the above reasons, the award of the Labour Court, dated November 17, 1995, made in ID. No. 382 of 1992 is set aside and the writ petition is allowed. No costs.