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2005 DIGILAW 232 (MAD)

The Management of Nilgiri v. Vanaja & Others

2005-02-09

V.KANAGARAJ

body2005
Judgment :- Common Order: All the above Writ Petitions have been filed under Article 226 of the Constitution of India praying to quash the Common Award of the Labour Court, Coimbatore dated 4.6.1996 respectively made in I.D.Nos.130 to 133 of 1994. 2. On a perusal of the materials placed on record and upon hearing the learned counsel for the petitioners and the learned counsel for the first respondents in all the above writ petitions, it comes to be seen that the first respondents in all the above writ petitions were the employees of the petitioner Management and on ground that they have committed theft i.e. carrying of milk, ghee packets, butter and milk powder etc., the petitioner Management has denied work for them by a oral order. Challenging the said order of denial of work, the workmen have raised Industrial Disputes before the Labour Court, Coimbatore in I.D.Nos.130 to 133 of 1994 and the Labour Court would conduct a joint enquiry wherein on behalf of the Management, they would examine four witnesses for oral evidence as M.Ws.1 to 4 and would mark 13 documents for documentary evidence as Exs.M.1 to M.13. On the contrary, on behalf of the first respondents herein, though no oral evidence has been adduced, seven documents would be marked for documentary evidence as Exs.W.1 to W.7. 3. In consideration of the said oral and documentary evidence, the Labour Court having observed that the workmen have completed 480 days of work in two calendar years and termination of their services by the Management is against the provisions of Section 25 of the Industrial Disputes Act; that the enquiry was not conducted in the manner known to law and hence would hold that the termination of the workmen is void and would order reinstatement of the workmen without backwages but with continuity of service from the date of their termination i.e. 18.5.1993. It is only challenging the said Common Award of the Labour Court, the Management has come forward to file all the above writ petitions. 4. It is only challenging the said Common Award of the Labour Court, the Management has come forward to file all the above writ petitions. 4. In the similar affidavits filed in support of all the above writ petitions, the petitioner Management would submit that the first respondents in all the above writ petitions were never employed either permanently or temporarily in permanent posts and the nature of the work entrusted to them was purely temporary being incidental on daily wage basis and hence they could not be said to be in permanent employment of the petitioner Management and that they did not complete 480 days of continuous work in two calendar years and hence they are not entitled to be regularised under law; that the first respondents herein were not given any orders of appointment and also any orders of termination; that there is no employer and employee relationship between the petitioner Management and the first respondents; that there is no provision in the Management Rules and Regulations to fill-up the permanent vacancy from the temporary casual labourers; that as and when permanent vacancy arises, that should be filled up only from the names sponsored by the Employment Exchange and the first respondents herein were neither sponsored nor employed as per the Rules and Regulations of the Management. 5. The petitioner would further submit that the first respondents in all the above writ petitions are not 'workmen' as defined under Section 2(oo) of the Industrial Disputes Act and the procedures to be followed as per Section 25-F are not attracted for the present facts and circumstances of the case; that the first respondents herein were caught red handed while they were committing theft and have given their confessional statements in writing to the Management; that a proper enquiry was conducted by the Management and decided not to give work to them since they have involved in theft cases and thereupon the first respondents herein have tendered their apology letters to the Management and requested to give them the work which was denied by the Management and their dismissal is proportionate to the proved misconduct of theft. On such averments, the petitioner would pray to quash the Common Award of the Labour Court. 6. On such averments, the petitioner would pray to quash the Common Award of the Labour Court. 6. During pendency of the said writ petitions, the first respondents in all the above matters have filed W.M.P.Nos.7253 to 7256 of 1998 praying to direct the Management to pay each of them a sum of Rs.3,000/= as salary every month from the date of filing of the writ petitions and this Court by an order dated 16.11.1998 has directed the Management to pay a sum of Rs.750/= per month to each of the first respondents, pending disposal of the above writ petitions. 7. During arguments, the learned counsel for the petitioner, besides reiterating the grounds of the writ petitions, as extracted supra, would also submit that since in the cases in hand, the workmen have admitted their guilt, there is no necessity for the Management to examine witnesses and would cite the following judgments: 1. AIR 1968 SC 266 (THE CENTRAL BANK OF INDIA LTD. vs. KARUNAMOY BANERJEE) 2. 1992-II-LLJ 265 (HINDUSTAN AERONAUTICS LTD. vs. SHANMUGAM AND ANOTHER) 3. 1995-II-LLJ 492 (K.VENKATESWARLU vs. NAGARJUNA GRAMEENA BANK AND ANOTHER) 4. (2003) 3 M.L.J. 304 (G.GANESAN AND OTHERS vs. THE GOVERNMENT OF TAMILNADU, REPRESENTED BY THE SECRETARY, HOUSING AND URBAN DEVELOPMETN DEPARTMENT, CHENNAI AND OTHERS) 8. In the first judgment cited, the Honourable Apex Court has held: ".... But, if the workman admits his guilt, to insist upon the management to let in evidence about the allegations will only be an empty formality. In such a case, it will be open to the management to examine the workman himself, even in the first instance, so as to enable him to offer any explanation for his conduct, or to place before the management any circumstances which will go to mitigate the gravity of the offence. But, even then, the examination of the workman, under such circumstances, should not savour of an inquisition. If, after the examination of the workman, the management chooses to examine any witness, the workman must be given a reasonable opportunity to cross-examine those witnesses and also to adduce any other evidence that he may choose." 9. In the second judgment cited above, a Division Bench of the Karnataka High Court has held: "There was no necessity for the management to examine witnesses when the workman had pleaded guilty. In the second judgment cited above, a Division Bench of the Karnataka High Court has held: "There was no necessity for the management to examine witnesses when the workman had pleaded guilty. Where the workman had pleaded guilty, the finding given by the Tribunal that the charges were vague and indefinite and did not all under Standing Orders etc., was quite untenable. The finding that the dismissal of the workman would result in his economic death is unwarranted." 10. In the third judgment cited above, a learned single Judge of the Andhra Pradesh High Court has held: "In disciplinary proceedings, if the delinquent admits the charge or makes an unconditional and unqualified admission, there is nothing to be done by way of departmental enquiry and it cannot be argued that the procedure of departmental enquiry should have been applied notwithstanding such admission or confession. When admission made by the delinquent shows that he had committed the misconduct then the question of violation of principles of natural justice cannot have any relevance .... Departmental enquiry is not necessary in case of admission of misconduct by the employee. Even if any enquiry is made, despite admission, punishment imposed cannot be set aside on any defects in the conduct of enquiry." 11. In the fourth judgment cited above, a learned single Judge of this Court has held: "Persons appointed temporarily are not entitled to regularisation of service." Citing the above judgments, the learned counsel for the petitioner would pray to allow all the above writ petitions setting aside the common Award of the Labour Court. 12. On the contrary, on the part of the first respondents, the learned counsel would submit that the Labour Court has assessed all the facts and circumstances of the case and has ordered their reinstatement; that at present they are un-employed and that the workers employed along with them are now getting a monthly salary of Rs.3,000/=. 13. A perusal of the common Award of the Labour Court would show that the Labour Court would conduct a joint and thorough enquiry into the matter during which on the part of the Management, they would project the alleged confessional statements of the workmen in Exs.M1 to M4 to show that the workmen have admitted their guilt. 13. A perusal of the common Award of the Labour Court would show that the Labour Court would conduct a joint and thorough enquiry into the matter during which on the part of the Management, they would project the alleged confessional statements of the workmen in Exs.M1 to M4 to show that the workmen have admitted their guilt. But, the Court below having observed that the workmen have stoutly denied the said statements and further observing that there is no material placed on record to show that any written orders of termination have been passed by the Management, would order the re-instatement of the workmen without backwages. 14. Now, the arguments advanced on the part of the petitioner Management is that when the workmen have admitted their guilt, there is no necessity on the part of the Management to conduct any departmental enquiry. While admitting the propositions arrived at by various Courts in the judgments cited on the part of the learned counsel for the petitioner, this Court doubts the genuineness of the alleged confessional statements of the workmen which were stoutly denied on the part of the workmen. 15. It is an admitted fact that at the time of the alleged confessional statements of the workmen, they were the employees of the Management. It is also seen from the records that they were temporarily working for the Management for the last seven years and in spite of their service continuously for a period of 480 days in two calendar years, the Management has not bothered to regularise their services. In such circumstances, there is every possibility of the Management wielding its undue power on the workmen to extract the alleged confessional statements from the workmen. Only if it is proved overwhelmingly that the workmen have admitted their guilt, the propositions held by various High Courts in the judgments cited on the part of the learned counsel for the Management would come into operation. But, when the genuineness of the alleged confessional statements themselves is in doubt, it cannot, under any circumstances, be held that the workmen have admitted their guilt and hence the Management is not bound to conduct any enquiry. But, when the genuineness of the alleged confessional statements themselves is in doubt, it cannot, under any circumstances, be held that the workmen have admitted their guilt and hence the Management is not bound to conduct any enquiry. Therefore, this Court is of the considered view that the Labour Court ha arrived at the correct conclusion to order re-instatement of the workmen and therefore, the interference of this Court sought to be made into the well considered and merited common Award passed by the Labour Court is neither necessary nor warranted and all the above Writ Petitions become liable only to be dismissed. In result, (i) All the above Writ Petitions fail and they are dismissed as such. (ii) The Common Award of the Labour Court, Coimbatore dated 4.6.1996 respectively made in I.D.Nos.130 to 133 of 1994 is confirmed. However, there shall be no order as to costs.