Research › Search › Judgment

Karnataka High Court · body

2005 DIGILAW 679 (KAR)

MADHAVAN S. v. MANAGEMENT OF SUNDARAM MOTORS

2005-10-06

R.GURURAJAN

body2005
( 1 ) PETITIONER was appointed as Junior Clerk in 1972. He completed his probation. He was confirmed in service. He was elected as the treasurer of the TVS Workers Union. During his tenure as an office bearer of the Union, the petitioner used to take up the cause of workmen before the management and pursue it seriously. This was not liked by the management. Management issued a charge sheet dated november 25, 1977 that on November 14, 1977 at about 12. 45 p. m. petitioner addressed a small gathering of employees of claims section without obtaining prior permission of the management for holding the meeting and in that meeting he made a derogatory remarks and indecent words inciting the employees, thereby committed serious misconduct in terms of the certified Standing Orders of the company. Petitioner submitted his reply and an enquiry was conducted. One Sri Arvamuthan, was the enquiry officer. Enquiry was not held in accordance with law. Opportunity was also not given to the workmen. The enquiry is nothing but farce in terms of the averments made in the writ petition. The enquiry officer submitted his report. The report was not made available to the petitioner. The enquiry officer Ignored the defence. The management accepted the enquiry report and an order of dismissal was passed. Petitioner challenged the dismissal order before the Labour court. Evidence was recorded. The Labour court ruled that the enquiry is fair and proper. Thereafter the Labour Court considered the case on merits and upheld the order of dismissal. Petitioner in these circumstances is before me. ( 2 ) HEARD the learned counsel for the parties and perused the material on record. ( 3 ) IT is seen from the proceedings of the enquiry officer that the petitioner has chosen to cross-examine the witnesses. Petitioner had the benefit of an assistance from Sri (sic) Enquiry has been held on several dates. Ultimately the enquiry officer has completed the enquiry after providing opportunity to both the parties. The enquiry was closed on December 22, 1977. Thereafter, a show cause notice has been issued and a dismissal order followed. This has been challenged before the Labour Court. The labour Court heard the preliminary issue with regard to enquiry. The Labour Court noticed that the workman has cross examined the witnesses. The enquiry was closed on December 22, 1977. Thereafter, a show cause notice has been issued and a dismissal order followed. This has been challenged before the Labour Court. The labour Court heard the preliminary issue with regard to enquiry. The Labour Court noticed that the workman has cross examined the witnesses. Labour Court also notices that the workman did not make any request of an assistance of a trade union leader in terms of the enquiry proceedings. Labour Court also notices that no request was made with regard to the written argument. Labour Court after noticing the material on record has chosen to hold that the enquiry is fair and proper. A detailed order is passed. No material has been placed before me to hold against the management. ( 4 ) INSOFAR as merits of the matter is concerned, it is seen that the enquiry officer in the light of material placed before him has chosen to find the workman guilty of the charges. The Labour Court has accepted the same. Let me see as to whether the Labour court is justified in accepting the evidence. ( 5 ) IT is seen that the petitioner has addressed a gathering of workers during duty hours in the premises. The speech was made during the lunch break. The same has been spoken to by the witnesses. One Sri Samachar has stated that Sri Madhavan addressed a meeting. He has narrated the speech in his deposition. He would say that the petitioner has stated in the speech that he would give respect to everybody as long as I remain here. Afterwards, if anybody asks me anything, I will beat him with chappals. He has been cross-examined and in cross examination, he has stated that he heard the speech. He has also explained that he has submitted a report to the management in this regard. One Sri veeraraghavan, Assistant Works Manager, has also stated that Sri Madhavan addressed a meeting. He has also been cross examined. One paramashivam, has also supported the other witnesses. Further he has stated that he spoke that the management had asked them to learn respect which they themselves did not know in the four months. Lastly he told that he would chappal even if he were to lose the job. In cross-examination it was suggested to these witnesses that to whom the chappal would refer. Further he has stated that he spoke that the management had asked them to learn respect which they themselves did not know in the four months. Lastly he told that he would chappal even if he were to lose the job. In cross-examination it was suggested to these witnesses that to whom the chappal would refer. These witnesses state that it is about the management. Sri Chinnadurai, Sri jagannathan, Sri Ayyappakutty,. Sri Devassy vareechan, have also spoken about the incident. They have also been cross-examined. The workman has also placed his evidence. The enquiry officer in the light of his evidence has chosen to hold guilty of the charges levelled against him. The Labour Court, in the impugned award notices all these aspects in para 12 of the award. The Labour Court notices the gathering, address during the lunch break and the chappal beat. After noticing all these things, the Labour Court in my view has held that there is no perversity of finding in the present case. This finding has to be accepted. ( 6 ) WITH regard to the plea of victimisation, the Labour Court notices that the petitioner has been dismissed for misconduct. Except stating that he was involved in Union activities, no other acceptable material is placed with regard to the plea of victimisation. ( 7 ) THE Labour Court also notices that the petitioner was subsequently gainfully employed and he is drawing a salary of rs. 5,600/ -. The Labour Court notices that after dismissal petitioner is working as sub-accountant at Nadirabad Ltd. , Hyderabad. Prior to his appointment at Nadirabad Ltd. , he worked in another place for 7 to 8 months. ( 8 ) THE Supreme Court in the case of mahindra and Mahindra Ltd. v. N. B, namvade AIR 2005 SC 1993 : 2005-I-LLJ-1129 has ruled in para 20 reading as under at pp. 1133 and 1134 of LLJ:"20. It is no doubt that after introduction of section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/industrial Tribunal in interfering with the quantum of punishment awarded by the management where the concerned workman is found guilty of misconduct. 1133 and 1134 of LLJ:"20. It is no doubt that after introduction of section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/industrial Tribunal in interfering with the quantum of punishment awarded by the management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has keen, observed by the Division Bench of the high Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the Cases cited before us, i. e. Orissa Cement Ltd. (supra) and New shorrock mills (supra), this Court held punishment of dismissal for using of abusive language cannot be held to be disproportionate. In this case all the fora below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his sub-ordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to herein above. "the said judgment is applicable to the facts of this case. On the facts and circumstances of this case and in the light of the judgment of the Supreme Court, I do not find any acceptable ground to interfere with the award based on facts. Petition stands rejected. No costs.