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2012 DIGILAW 969 (MAD)

M. Neelakandan v. Presiding Officer

2012-02-23

K.CHANDRU

body2012
Judgment :- 1. The petitioner-workman has come forward to challenge the Award passed by the first respondent-Labour Court (II Additional District Judge), Pondicherry in I.D.No.25 of 2002, dated 21.2.2007. 2. By the impugned Award, the Labour Court dismissed the industrial dispute raised by the petitioner and declined to grant any relief to him. 3. The Writ Petition was admitted on 18.4.2007. On notice from this Court, the second respondent-Management has filed counter affidavit dated 19.2.2012. Since the petitioner has not produced all the documents made available before the Labour Court, this Court directed the Registry to summon the records from the Labour Court for perusal by this Court. Accordingly, the records have been summoned and the same had been perused by this Court. 4. It is seen from the records that the petitioner joined the services of the second respondent on 19.3.1991 as a Grade-III Operator. The petitioner was issued with a charge memo-cum-suspension order dated 26.4.2001, in which it is stated that the petitioner, while in the employment of the Company, along with two other persons, namely N.Kumanan and R.Ramalingam, promoted a company, named M/s.N.K.R.Chemicals Private Limited at Kalitheerthakuppam Village, Madagadipet Post, Mannipet Commune, Pondicherry and functioned in the capacity as a Director of the said Company along with the said two persons; the Company also secured certified copies of the Memorandum of Association and Articles of Association; the petitioner was instrumental in registering the said Company; he also applied for a loan from the Pondicherry Industrial Promotion Development and Investment Corporation Limited (for short, 'PIPDIC'), vide application dated 19.3.1997; the further allegation was that the signature of Mr.M.Mohan, who was the then Head of Personnel Department, was forged to show that he was actually relieved from the services of the Company and the same was a requirement for submitting the loan application; he has prepared the forged relieving order with a malicious intention to defraud and avail the loan from the PIPDIC; the petitioner was also accused of cheating the Company and working against the interests of the Company and engaged in a vocation outside that of the Company without the written permission of the Company. 5. According to the second respondent-Management, the petitioner-workman was guilty of various misconduct set out in the Certified Standing Orders of the Company. 5. According to the second respondent-Management, the petitioner-workman was guilty of various misconduct set out in the Certified Standing Orders of the Company. The first misconduct was relating to Standing Order No.9 of 29.02, wherein, it is stated that, "theft, fraud or dishonesty in connection with the employer's business or property". Therefore, pending enquiry into the charges, the suspension was also made and thereafter, the second respondent-Management appointed an Advocate, by name K.Babu as the Enquiry Officer and the petitioner sought for an assistance of a lawyer to defend him in the enquiry, which was not granted to him on the ground that the Company is not having any management representative who was a trained lawyer. The other allegation that the said Babu was Company's lawyer, was denied by the second respondent-Management. 6. In the enquiry, the defence taken by the petitioner was that while he was working in the Company, he came friendly with M/s.Kumanan and Ramalingam and the said Kumanan requested him to grant Rs.1.5 lakhs as a hand loan and also requested from Ramalingam Rs.2.5 lakhs as hand loan for setting up a small scale industry in the name and style of M/s.N.K.R.Chemicals Private Limited. The petitioner, by pledging the jewels of his wife valued at Rs.1.5 lakhs, paid to Kumanan and at that time, the said Kumanan took the signatures from the petitioner in several blank papers. The Company was registered and provisional certificate was also obtained by the said Kumanan and licence was also obtained by the said Kumanan and the said Kumanan, without the knowledge and permission of the petitioner, availed a loan of Rs.18 lakhs from PIPDIC by using the blank formats and blank papers, which were signed by the petitioner and Ramalingam. Knowing these facts, the petitioner and Ramalingam sent a letter to the PIPDIC not to sanction any further loan. Thereafter, the said Kumanan approached the petitioner and the said Ramalingam stating that he would discharge the hand loan with interest and also made part payment. He also requested the petitioner and Ramalingam to put their resignation papers and in their place, he nominated his wife Uma and his brother Buddhan. The Company was also registered with the Registrar of Companies on 13.6.1999. The petitioner has disconnected the relationship with the said N.K.R.Chemicals. He also requested the petitioner and Ramalingam to put their resignation papers and in their place, he nominated his wife Uma and his brother Buddhan. The Company was also registered with the Registrar of Companies on 13.6.1999. The petitioner has disconnected the relationship with the said N.K.R.Chemicals. It was only when the said Kumanan issued a legal notice to the petitioner on 21.9.1999, he came to know that he has forged a letter in the Company's letter-head in the name and signed by one Mohan who was the Deputy HRD of the Company purporting to use it as a relieving letter, which is the requirement under the terms and conditions for grant of loan by PIPDIC. The petitioner gave suitable reply to the said Kumanan and the Kumanan has not paid back the hand loan fully received from the petitioner. The said Kumanan also sent a letter to the second respondent-Management regarding the alleged fabrication of the letter in the Company's letter-head which was submitted to PIPDIC. The Management, believing that letter, framed the charges and placed the petitioner under suspension. 7. According to the petitioner, in the enquiry held against him, the Management did not examine the said Kumanan and Mohan, the Deputy HRD of the Company. The relevant documents were not allowed to be produced. Though the two witnesses for the Management, namely M/s.Chandrasekar and Vijayabaskar, stated that the petitioner has taken the letter-head from the Company, but they have never stated that it was the petitioner who forged the signature of Mr.Mohan. In the enquiry held against the petitioner, the Enquiry Officer gave his report and on 6.12.2001, the petitioner's explanation was called for by way of show cause notice. The petitioner submitted his explanation on 1.1.2002. But however, he was dismissed from service, by order dated 21.1.2002. 8. Aggrieved by the said order of dismissal, the petitioner preferred an industrial dispute before the Government Labour Officer (Conciliation) at Pondicherry. As the Conciliation Officer could not bring about the mediation, sent a failure report dated 14.8.2002 to the Government of Pondicherry. The Government of Pondicherry, by their letter in G.O.Rt.No.171/2002/Lab/AIL/J, dated 18.12.2002, referred the dispute for adjudication by the Labour Court under Section 10(1) of the Industrial Disputes Act. The reference that was made to the Labour Court was whether the non-employment of the petitioner M.Neelakandan by M/s.Shasun Chemicals and Drugs Limited, Pondicherry, is justified or not? The Government of Pondicherry, by their letter in G.O.Rt.No.171/2002/Lab/AIL/J, dated 18.12.2002, referred the dispute for adjudication by the Labour Court under Section 10(1) of the Industrial Disputes Act. The reference that was made to the Labour Court was whether the non-employment of the petitioner M.Neelakandan by M/s.Shasun Chemicals and Drugs Limited, Pondicherry, is justified or not? If not justified, what remedy he is entitled to and to compute the relief, if any awarded in terms of money if it can be so computed. 9. On receipt of the reference order of the Government, the Labour Court registered the dispute as I.D.No.25 of 2002 and issued notice to both parties. The petitioner-workman filed a claim statement dated 7.2.2003 and the second respondent-Management filed a counter statement, dated 10.3.2003. 10. Before the Labour Court, on the side of the petitioner-workman, 15 documents were filed, which were marked as Exs.A-1 to A-15 and on the side of the Management, nine documents were filed, which were marked as Exs.B-1 to B-9. The Labour Court, on the basis of these materials, came to the conclusion that the enquiry held against the workman was not vitiated; the appointment of Advocate who was alleged to be Company lawyer, was denied; and the question of having as a matter of right the assistance of Advocate, is not provided under the Standing Orders and the Management has not permitted the workman to be represented by a counsel in the enquiry, as the Management was not represented by any legally trained person. On the merits of the case, the Labour Court held that the petitioner's name was also shown as a Director in the Company and his resignation was only noted as per the certificate issued by the Registrar under Form 32 under the Companies Act, and that he has resigned only with effect from 13.6.1999. After looking into series of correspondences between the petitioner and the said Kumanan, the Labour Court was of the view that he acted as a Director of M/s.N.K.R. Chemicals on 4.6.1999 when the Board meeting of the Directors was convened to submit annual accounts. The loan was also obtained from PIPDIC, which was also admitted by the petitioner, who has also gone to the premises of the PIPDIC though only once. The loan was also obtained from PIPDIC, which was also admitted by the petitioner, who has also gone to the premises of the PIPDIC though only once. As per the Memorandum and Articles of Association of the Company, marked as Ex.M-11 before the Enquiry, the petitioner and the said Ramalingam had ten shares each and they are mentioned as Director Nos.2 and 3 of the Company. A sum of Rs.1,50,000/-was also paid by the petitioner for the purpose of floating and promoting the Company and registering it and also availed of the loan, for which, he never obtained permission from the second respondent-Management. The contention raised by the petitioner-workman that no production was commenced by the Company and there was no loss or prejudice to the Company, was not acceptable to the Labour Court. The workman did not prove that he had not taken any knowledge acquired during the work in the second respondent-Management or the technology to the new Company. As per the Memorandum and Articles of Association, the Director of the Company will get remuneration as may be determined by the Company and the Directors are also entitled to get sitting fees which the Board of Directors may decide from time to time. They will be paid travelling and other incidental charges in connection with the meeting. Therefore, by accepting the post of Director in another Company, the petitioner was having dual employment. It is not necessary for the Company to prove that actually, the Company's secrets were taken away by the worker to any other outside person. It is enough if there is any dual employment, which itself is a misconduct under the Standing Orders. 11. On the question of the forged letter used by the petitioner to avail the loan, the Labour Court stated that the said Deputy HRD Manager was not examined, because, he was not available at the time of enquiry, as he has left the Company's service. It is for the petitioner who has set up the case that the forgery was done by Kumanan to prove the same in the enquiry and the Management need not examine the said Kumanan. In view of the conduct of the petitioner, the Labour Court came to the conclusion that the Management has lost confidence in retaining the petitioner in the Company any more. In view of the conduct of the petitioner, the Labour Court came to the conclusion that the Management has lost confidence in retaining the petitioner in the Company any more. The other argument that the Standing Orders of the Company which were certified admittedly during 1994, will not apply to him, as he has joined the services of the second respondent-Management in 1991, has been correctly rejected by the Labour Court. Even otherwise, the Standing Orders referred to in this case relating to theft, dishonesty, etc., in connection with the employer, also finds place in the Model Standing Orders framed by the Central Government in Standing Order No.14(3)(b). Since the Union Territory of Pondicherry has not framed any Model Standing Orders, the Industrial Employment (Standing Orders) Central Rules, 1946, framed by the Central Government on 18.12.1946 (Schedule I), will apply, which states that the same will apply to all Union Territories. 12. Therefore, even if the Standing Orders of the Company were not made applicable, yet, as per the Model Standing Orders framed by the Central Government as quoted above in 1946, such an act committed by the petitioner is a misconduct, and therefore, the petitioner cannot escape by advancing any technical argument in this regard. 13. The Labour Court found that the enquiry was conducted properly, in which, the misconduct of the petitioner has been established beyond doubt, and since the Management has lost confidence in the activities of the workman, he was not fit person to be given any relief. It is in that view of the matter, the Labour Court dismissed the Industrial Dispute raised by the petitioner. 14. However, the learned counsel for the petitioner placed reliance on the judgment of the Supreme Court reported in AIR 1971 SC 752 (Surath Chandra Chakravarty Vs. The State of W.B) for contending that the person must be given reasonable opportunity to defend himself in the enquiry and in paragraph 4, the Supreme Court observed that if the charges are very vague and indefinite, lacking any particulars, then it cannot be said to be providing reasonable opportunity. In the present case, no such accusation can be made, as the petitioner has been given full opportunity as noted by the Labour Court. 15. Learned counsel for the petitioner also relied upon the judgment of the Supreme Court reported in 1983 (1) SCC 124 (Board of Trustees, Port of Bombay Vs. In the present case, no such accusation can be made, as the petitioner has been given full opportunity as noted by the Labour Court. 15. Learned counsel for the petitioner also relied upon the judgment of the Supreme Court reported in 1983 (1) SCC 124 (Board of Trustees, Port of Bombay Vs. D.R.Nadkarni). In that case, the Supreme Court clearly held that it is only when the Management engages a legally trained person as a Management representative, the question of level playing field will arise, so as to enable the worker to have a lawyer to defend himself. In the present case, the Management has only appointed an Advocate as an Enquiry Officer and there is no defence representative of legally trained person and that objection was correctly over-ruled by the Labour Court. 16. Learned counsel for the petitioner further relied on the decision of the Supreme Court reported in 1986 (3) SCC 454 (Sawai Singh Vs. State of Rajasthan), to contend regarding the vagueness of the charges. As already held by this Court, there is no vagueness of the charges levelled against the petitioner, which was rightly rejected by the Labour Court. Further reference was made to the decision of the Apex Court reported in 1995 (1) SCC 332 (Transport Commissioner Vs. A.Radha.K.Moorthy) for the very same purpose. 17. Learned counsel for the petitioner also referred to the judgment of the Supreme Court reported in AIR 1991 SC 1221 (J.K.Aggarwal Vs. Haryana Seeds Development Corporation Ltd. and others) for contending that there is a discretion to permit a lawyer for the delinquent employee and if the discretion was not exercised property, it will result in the enquiry being held bad in law. In that case, the Supreme Court clearly referred to the Service Rules framed by the Haryana Government, known as Haryana Civil Services Appeal Rules, 1952, more particularly, to Rule 7(5), wherein, discretion is given to the Management to provide assistant of a lawyer. But that is not the situation in this case. As already held in the case of Board of Trustees, Port of Bombay Vs. D.R.Nadkarni ( 1983 (1) SCC 124 ) (cited supra), there is no natural justice in the matter of allowing a lawyer to represent a party and it is only when there is proper level playing field, the question of consideration of the lawyer's assistance will arise. 18. D.R.Nadkarni ( 1983 (1) SCC 124 ) (cited supra), there is no natural justice in the matter of allowing a lawyer to represent a party and it is only when there is proper level playing field, the question of consideration of the lawyer's assistance will arise. 18. Learned counsel for the petitioner also placed reliance on the decision of the Supreme Court reported in 2009 (12) SCC 78 (Union of India Vs. Gyan Chand Chattar) for contending that in case of charges like bribery, there must be a specific definite detailed charge sheet and strict adherence to statutory principles must be followed. The standard of proof cannot be a mere suspicion. It should be based upon the records. In the present case, the charge levelled against the petitioner was that he has acted in dishonest to the Company's business and it is immaterial that consequent upon the registration of the Company, he has resigned from the post or that the Company did not have any actual business going on. Apart from this, there is a very serious charge of forging the Company's records by producing the relieving order when the petitioner himself continues in the services of the second respondent-Company. 19. Therefore, the Labour Court cumulatively seeing the records and evidence, came to the conclusion that the charges were proved and it does not call for any interference under Section 11-A of the Industrial Disputes Act. 20. In the present case, the second respondent-Management has raised a defence before the Labour Court that they have lost confidence in the petitioner-workman for retaining in the service and the Labour Court has also accepted the same and therefore, refused to give any relief to the petitioner-workman. 21. Sitting under Article 226 of the Constitution of India, this Court is not inclined to interfere with the well-reasoned Award passed by the Labour Court. There is no case made out by the petitioner to interfere with the impugned Award of the Labour Court. The Writ Petition is accordingly dismissed. No costs.