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2014 DIGILAW 3740 (MAD)

R. Kaliannan v. Presiding Officer

2014-10-09

R.S.RAMANATHAN

body2014
Judgment 1. In this Writ Petition, the petitioner seeks for a direction directing the second respondent to revoke the dismissal order stating that the same is in violation of the standing order and it amounts to victimisation in dismissing him from service without conducting any enquiry. 2. Mr.Ravindran, learned counsel appearing for the petitioner submitted that the petitioner is the General Secretary of the Employees Union, which represents majority of members employed in the second respondent establishment at Hosur. The union in which the petitioner is the General Secretary submitted a charter of demands and a dispute was raised under Section 2(k) of the Industrial Disputes Act before the Labour Officer, Krishnagiri and later, transferred to the Deputy Commissioner of Labour, Salem. The Conciliation efforts failed and the Labour Officer sent his failure report and the dispute has been referred to the first respondent for verification. During pendency of the dispute, the management started negotiating with the rival union which does not have good number of workers and also entered into Section 12(3) settlement with that union. Therefore, the union in which the petitioner is the General Secretary filed a Writ Petition and obtained an order of injunction and that was challenged in Writ Appeal by the management wherein the order was modified to the effect that the management could enter into Section 18(1) settlement with the rival labour union. Thereafter, the petitioner's union gave a petition to the Government to direct the management to abolish the contract labourer by absorbing them as permanent workers and the committee constituted by the first respondent deputed the Labour Officer to conduct an inspection and the petitioner and the other office bearers assisted the Labour Officer during inspection and enraged by that, the second respondent management started victimising the union activities and office bearers. The treasurer, Mr.Muthuraj, was issued show cause notice and two other workers were suspended. The petitioner was transferred to Jabalpur and the Joint Secretary, Srinivasan, was transferred to Maraimalai Nagar. While so, the second respondent without any reason and with an intention of recking vengeance on the petitioner and other office bearers dismissed the petitioner from service by order dated 9.5.2014 without conducting any enquiry and the action of the second respondent is also against the provisions of the standing orders. While so, the second respondent without any reason and with an intention of recking vengeance on the petitioner and other office bearers dismissed the petitioner from service by order dated 9.5.2014 without conducting any enquiry and the action of the second respondent is also against the provisions of the standing orders. Therefore, the present Writ Petition is filed to direct the management to revoke the dismissal order and reinstate the petitioner in employment. 3. It is also submitted by the learned counsel for the petitioner, Mr.Ravindran, that as per the certified standing orders, a workman on a charge of misconduct supported by satisfactory evidence recorded in the enquiry held for the purpose be suspended for a period not exceeding 30 days or dismissed but such workman shall not be entitled to any notice or any compensation in lieu of such notice. He therefore submitted that failure to conduct enquiry and prove the charges against the petitioner amounts to violation of the principles of natural justice and therefore, the order of dismissal is liable to be set aside. He also submitted that as per Fifth Schedule of the Industrial Disputes Act, dismissing the worker is an utter disregard to the principles of natural justice by not conducting domestic enquriy or the undue haste amounts to unfair labour practice and therefore, on that ground also, the dismissal order is liable to be set aside. He also relied upon the following judgments in support of his contention:- 1. Between Colonel 'Q' and another, and G.ravindran Pillai [1995 I L.L.N.1202] 2. Lakshmi Precision Screws Ltd Versus Ram Bahagat [(2002) 6 Supreme Court Cases 552] 3. Federal Bank Ltd., Vs. Sagar Thomas and others [2003 (4) CTC 418] 4. I am unable to accept the contention of the learned counsel for the petitioner. Between Colonel 'Q' and another, and G.ravindran Pillai [1995 I L.L.N.1202] 2. Lakshmi Precision Screws Ltd Versus Ram Bahagat [(2002) 6 Supreme Court Cases 552] 3. Federal Bank Ltd., Vs. Sagar Thomas and others [2003 (4) CTC 418] 4. I am unable to accept the contention of the learned counsel for the petitioner. The Hon'ble Supreme Court considered a similar issue where no enquiry had been held before the services of a workman were terminated and in respect of such termination, where a dispute had been raised and the said dispute referred to the Labour Court for adjudication under Section 10 of the Act, and held that the employer should be permitted by Labour Court to adduce evidence to justify the termination before the Labour Court in the matter of Delhi Cloth and General Mills Company Limited v Ludh Budh Singh reported in 1972-I-LLJ-180, and after referring to judgment rendered in Workmen of Motipur Sugar Factory (Private Limited v The Motipur Sugar Factory (Private) Limited (1965-II-LLJ 162), the Supreme Court held as follows:- "52. In the case of Workmen of Motipur Sugar Factory, supra, this Court had again to consider the nature of the jurisdiction exercised by a Tribunal. The management therein had terminated the services of some of its workmen without holding any enquiry as required by its standing orders. The legality of termination of the services of the workmen was referred for adjudication to the Industrial Tribunal under the Act. The management let in evidence before the Tribunal justifying its action in terminating the services of the workmen for misconduct. The workmen also let in evidence contra. The Tribunal after consideration of the evidence adduced before it held that the action of the management in terminating the services of the workmen was proper. Before this Court it was urged on behalf of the workmen that as the management had given no charge-sheets and had held no enquiry as required by the standing orders, it was not open to the management to justify before the Tribunal its order discharging the workmen and that the Tribunal had no jurisdiction to consider the claim of the management on merits. The contention of the workmen was rejected by this Court as follows: It is now well-settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman, it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited questions open to a Tribunal where domestic enquiry has been properly held (Indian Iron and Steel Company v Their Workmen), but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s. Sasa Musa Sugar Works (P) Limited v Shobrati Khan and Others, Phulbari Tea Estate v Its Workmen and Punjab National Bank Limited v Its Workmen. These three cases were further considered by this Court in Bharat Sugar Mills Limited v Shri Jai Singh, and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha v Belsund Sugar Company. It was pointed out that "the important effect of the omission to hold an enquiry was merely this: that the Tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out". It is true that three of these cases, except Phulbari Tea Estate's case, were on applications under Section 33 of the Industrial Disputes Act, 1947. But in principle, we see no difference whether the matter comes before the Tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case, if the enquiry is defective or if no enquiry has been held as required by standing orders, the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. In either case, if the enquiry is defective or if no enquiry has been held as required by standing orders, the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's case, was on a reference under Section 10, and the same principle was applied there also, the only difference being that in that case, there was an inquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the Tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the Tribunal that on facts the order of dismissal or discharge was proper. If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the Industrial Tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim benefit of the domestic enquiry. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits, the employee has the advantage of having the merits of his case being considered by the Tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the Tribunal may give an opportunity to the employer to prove his case and in doing so the Tribunal tries the merits itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. Therefore, we are satisfied that no distinction can be made between cases where the enquiry has in fact been held. Therefore, we are satisfied that no distinction can be made between cases where the enquiry has in fact been held. We must, therefore, reject the contention that as there was no enquiry in this case it was not open to the respondent to justify the discharge before the Tribunal". XXX XXX XXX XXX XXX. "58. Workmen of Motipur Sugar Factory's case was an instance where no enquiry at all had been held by the management as per its standing orders before terminating the services of the employees. But evidence was adduced before the Tribunal by the management justifying its action and that evidence was accepted by the Tribunal. The contention of the workmen that as no enquiry had been held by the management before passing the order of termination, it was not open to the management to adduce evidence before the Tribunal justifying its action, was rejected by this Court. xxx xxx xxx xxx xxx". "61. From the above decisions the following principles broadly emerge: (1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straight away adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it. xx xx xx xx xx. (7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act". 5. Admittedly, the petitioner is a workman and against the dismissal order, he is entitled to raise an Industrial Dispute under Section 2(a) of the Industrial Disputes Act, 1947 challenging the dismissal order and in such proceedings, the management can also justify the dismissal order by adducing evidence. Therefore, the workman has an equal and efficacious remedy to challenge his dismissal order by raising industrial dispute and therefore, the Writ Petition seeking a Writ of Mandamus directing the second respondent to revoke the dismissal order without challenging the same it is not maintainable. 6. Therefore, the workman has an equal and efficacious remedy to challenge his dismissal order by raising industrial dispute and therefore, the Writ Petition seeking a Writ of Mandamus directing the second respondent to revoke the dismissal order without challenging the same it is not maintainable. 6. It is seen from the impugned order that the second respondent after enumerating various misconducts committed by the petitioner from the year 1997 to 2009 and also criminal cases listed against the petitioner which led to the drastic action taken by the management in dismissing the petitioner and also stated how the misconduct is punishable under various provisions of the standing order and also in the interest of the family members of the workers who gave complaints against the petitioner, it may not be possible to retain the petitioner in service for the purpose of conducting enquiry and the conduct and the behaviour of the petitioner created an atmosphere of threat among the supervisor and senior managers and Personnel Manager (Human Resources) and their safety was at danger and therefore, it was not possible to conduct domestic enquiry before taking action and therefore, dismissed the petitioner for the misconduct committed by him which are serious in nature and also stated that it was not possible to conduct enquiry and the charges can be proved in the Court. Therefore, the petitioner was not dismissed without stating the reasons for his dismissal and also reasons for not conducting enquiry and the petitioner was also informed about the misconduct committed by him for which the order of dismissal was passed. It is further sated that for the purpose of enquiry into the complaints made against the petitioner, the petitioner was transferred and the petitioner did not accept the transfer though he was provided with confirmed flight ticket and other arrangements made, and the petitioner has not joined duty in the transferred place. Therefore, in such circumstances, if enquiry is conducted on the complaints given against the petitioner, the management may not be in a position to provide protection to the management witnesses as well as their families and therefore, the management was constrained to pass an order of dismissal without conducting enquiry. 7. Therefore, in such circumstances, if enquiry is conducted on the complaints given against the petitioner, the management may not be in a position to provide protection to the management witnesses as well as their families and therefore, the management was constrained to pass an order of dismissal without conducting enquiry. 7. Therefore, it is seen from the dismissal order of management, as explained, the reason for not conducting enquiry making it clear that it is impracticable for the management for conducting enquiry having regard to the seriousness of the charges and also the apprehension of the management witnesses that they and their family members may be attacked by union members and when such reason has been stated for not conducting enquiry, even though dismissal order was contrary to the standing orders, it cannot be termed as violation of the principles of natural justice and the worker can challenge the same by raising industrial dispute and get redressed his grievance but Article 226 of the Constitution of India cannot be used against such matters. 8. By way of analogy, Article 311 of the Constitution of India can be considered. The Hon'ble Supreme Court in the judgment reported in 1985 (3) SCC 388 in the case of Union of India vs. Tulsiram Patel, after considering the scope of clauses (a), (b) and (c) of the second proviso to Article 311 observed as follows:- “130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished : feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner : to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner : to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to given evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause(3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. * * * 133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. 134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 135. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable him to challenge the validity of that reasons in a departmental appeal or before a court of law and the failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the disciplinary authority to communicate to the government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the government servant and the matter comes to the court, the court can direct the reasons to be produced, and furnished to the government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non- production of the written reasons.” 9. Such presumption can, however, be rebutted by a satisfactory explanation for the non- production of the written reasons.” 9. In the judgment reported in 1996-II-LLJ 675 in the case of between Chandigarh Administration, Union territory, Chandigarh & Ors., and Ajay Manchanda etc., also after relying upon the Tulsiram Patel's case supra held that recording of reasons for forming a requisite satisfaction for not holding enquiry is mandatory and when a question arises whether it is reasonably practicable to hold enquiry, the decision of the competent authority shall be final on that question but at the same time, the scope of judicial review is not excluded. 10. According to me, the scope of judicial review is available by raising a dispute under section 2 (a) of the Industrial Disputes Act wherein, the management can also lead evidence to prove those charges and Labour Court can decide the issue on the basis of the evidence. 11. Therefore, by applying the above principle also, it is not open to the petitioner to seek for a writ of Mandamus directing the second respondent to revoke dismissal order on the ground that the enquiry was not conducted when reasons are recorded to the dismissal for not conducting enquiry and it is always open to the parties to justify their action of dismissal before the Labour Court and on that ground, the Writ Petition is not maintainable. 12. The judgments relied upon by the learned counsel for the petitioner cannot be considered for the purpose of this case. Though in the judgment reported in 1995 (1) LLN 1202 supra, a Division Bench of this Court confirmed the order of a learned single Judge setting aside the order of dismissal without conducting enquiry, the facts are different. In that case, the parties are governed by the proceedings of the Tamilnadu Shops and Establishment Act and as per Section 41 of the Act, no employer shall dispense with the services of a person employed continuously for a period of not less than six months except for the reasonable case and without giving such person at least one month's notice or wages in lieu of such notice, and such notice is necessary where services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for that purpose. While considering Section 41 of the Tamilnadu Shops and Establishment Act, 1947, the Division Bench held that illegality of the order of termination of the petitioner is a matter which has to be investigated by the appellate authority and set aside the order of the learned single Judge and confirmed the order of dismissal. However, in respect of other workers, the order of learned single Judge is confirmed. However, the learned Division Bench did not consider the judgment of the Hon'ble Supreme Court reported in 1972-I-LLJ-180 and 1965-II-LLJ 162 as referred to above. 13. The judgment reported in (2002) 6 Supreme Court Cases 552 supra cannot also be relied upon by the learned counsel for the petitioner, as in that case, the worker approached the Labour Court against the dismissal order and against the award passed by the Labour Court, the management filed Writ Petition. Similarly, the judgment of the Bombay High Court in W.P.No.1087 of 1997 referred to above cannot be applied to the facts of the case. In the judgment reported in 2003 (4) CTC 418, the learned counsel for the petitioner relied upon the passage in Paragraph 27 wherein it is held that if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, High Court can interfere with and the Writ is maintainable against the private bodies. 14. As stated supra, though there is violation of clause 20 of the standing order in not conducting enquiry before issuing dismissal order when the management has stated reasons for not conducting enquiry, the same cannot be questioned and it is open to the worker to challenge the dismissal by raising an industrial dispute and in such circumstances, the management can also justify its action. Therefore, there is no prejudice caused to the workman by the dismissal order on the ground that the order was passed without conducting enquiry. Therefore, when an effective and efficacious alternative remedy is available by raising dispute under the Industrial Disputes Act, without resorting to that, the Writ Petition seeking for a direction to revoke the order of dismissal is not maintainable. Further, the petitioner without challenging the dismissal order is also not entitled to seek a writ of mandamus directing the second respondent to revoke dismissal order. Further, the petitioner without challenging the dismissal order is also not entitled to seek a writ of mandamus directing the second respondent to revoke dismissal order. It is always open to the petitioner either to make an appeal to the second respondent stating the reasons for revoking the dismissal order after raising an industrial dispute challenging the dismissal order, and he cannot file a writ of mandamus directing the second respondent to revoke his dismissal order for the reasons stated above. 15. Hence, I do not find any merit in the Writ Petition and the Writ Petition is dismissed. No costs. The connected Miscellaneous Petition is closed.