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2016 DIGILAW 1159 (KER)

The General Secretary v. The Labour Court Kollam

2016-12-21

ANTONY DOMINIC, SHIRCY V.

body2016
JUDGMENT Shircy V.,J. 1. The General Secretary of Nair Service Society (for short N.S.S) Central Committee, the unsuccessful petitioner, in Writ Petition(C) No. 15039 of 2008 has filed this appeal challenging the judgment of the learned Single Judge dated 28.10.2014. 2. The Brief facts necessary to decide the appeal are as follows: The petitioner is conducting a hospital under the name and style 'N.S.S. Medical Mission Hospital' at Pandalam. The 2nd respondent, (hereinafter referred to as the employee) was an X-ray technician of the hospital. On a complaint filed against him by an inpatient (herein after referred to as the complainant) of the hospital alleging misbehavior, towards her in the course of taking X-ray on 12.9.2003, a preliminary enquiry was conducted by the Superintendent of the Hospital and he reported that the allegations leveled against him are correct. Acting upon the report, he was placed under suspension. Thereafter, disciplinary proceedings were initiated and an enquiry officer was appointed to conduct an enquiry. The employee filed statement of facts refuting the allegations leveled against him. The disciplinary proceedings culminated in punishment of dismissal from service with effect from 23/09/03, the date of suspension. 3. Then the employee raised an industrial dispute and the Government have referred the dispute for adjudication before the 1st respondent, Labour Court. Before the Labour Court, the petitioner/management filed Ext.P10 written statement. Ext.P11 is the copy of the claim statement filed by the employee. The enquiry officer was examined as MW1 on the side of the petitioner/management and Exts.M1 and Ext.P1(a) were marked and finally Ext. P12 preliminary order was passed in favour of the employee holding that the enquiry held is vitiated. Ext.P13 is the Award delivered by which he was directed to be reinstated with back wages. Aggrieved by the Award of the Labour Court in the reference (I.D.No. 9/2006), the writ petition was filed by the petitioner. In the writ petition, the petitioner has contended that after the preliminary order was passed, the Labour Court did not give an opportunity to adduce further evidence justifying the action taken by the management against the workman. The reliefs sought for in the writ petition are as follows: "i. a writ of certiorari qushing/setting aside Ext.P12 preliminary order and Ext.P13 Award of the 1st respondent. and ii. The reliefs sought for in the writ petition are as follows: "i. a writ of certiorari qushing/setting aside Ext.P12 preliminary order and Ext.P13 Award of the 1st respondent. and ii. Such other writ order or direction as this Hon'ble court may deem fit and proper in the facts and circumstances of the case." 4. The learned Single Judge declined to interfere with the Award and dismissed the writ petition. Feeling aggrieved, the petitioner has filed this appeal. 5. We heard the learned Standing Counsel for the petitioner/appellant, learned Government Pleader for the 1st respondent and the learned counsel for the 2nd respondent. 6. The 2nd respondent/employee while working as X-ray Technician in N.S.S. Medical Mission Hospital, Pandalam was placed under suspension on 23.9.2003 acting upon Ext.P1 complaint received from the complainant, a lady aged 55 years, who was undergoing treatment as an inpatient. Admittedly, she was admitted in the hospital from 10.9.2003 to 16.9.2003. On 16.09.03, she had complained that the employee had misbehaved with her on 12.9.03 when she was taken to the X-ray room, in course of taking X-ray for her treatment. Ext.P1 is the copy of the complaint filed. Ext.P2 is the notice served on him on receipt of the complaint and Ext.P2(a) is his statement refuting the allegations. In the domestic enquiry, witnesses were examined as MW1 and MW2 and Ext.M1, M2, M2(a) and M2(b) were marked on the side of the petitioner/management. It is pertinent to note that in the complaint she had alleged that she was taken to the X-ray unit in a wheel chair as she was suffering severe pain, accompanied by her husband and a nurse. It is further alleged in the complaint that the employee was in a hurry and asked her to lie down on the X-ray table so as to make it convenient for him to take the X-ray of her abdomen. The specific allegation leveled against him is that he has forcefully lowered down her dress and pressed on her abdomen causing severe pain to her. On the basis of this complaint lodged by her after 4 days of the alleged incident that is on 16.09.2003, he was placed under suspension on 23.09.2003. Thereafter Ext.P3 memo of charges was served on him on 6.10.2003 which reads as : 1. That Sri. On the basis of this complaint lodged by her after 4 days of the alleged incident that is on 16.09.2003, he was placed under suspension on 23.09.2003. Thereafter Ext.P3 memo of charges was served on him on 6.10.2003 which reads as : 1. That Sri. A.N. Krishnakumar, while working as X-ray Technician in the hospital on 12.9.2003 misbehaved towards Smt. L.Suseela, Sivodayam, Kunnathoor West, Manampuzha P.O. who was I.P.No. 4575 in the hospital, when she was brought to X-ray unit in a wheel chair by a Nurse and her husband. 2. that you did not allow either her husband or the Nurse to enter into the X-ray room against the Medical ethics that whenever a female. patient is brought for examination either the by-stander of the patient or another female staff of the Hospital should be present. 3. that the petition dated 16.9.2003 submitted by the patient Smt.Suseela shows that you have in a hurry- burry manner raised her sari and skirt above her stomach and after putting a green piece of cloth below her abdomen forcibly pressed on her vagina causing severe pain to her abdomen and its lower part. 4. that your action described above is amounting to misconduct, moral turpitude and immoral traffic on a woman's body which deserves severe punishment. 5.that the Medical Superintendent of the hospital in his report forwarding the petition of Smt. Suseela has stated that since the behaviour of Sri. Krishnakumar to the patient was very filthy and violative of moral ethics of the Hospital and requested that stringent disciplinary action may be initiated against you." 7. After serving him the memo of charges, explanation was called for and in Ext.P4 explanation, he has specifically contended that the X-ray was taken by him with the assistance of one of his trainee, one Reshmi, a second year General Nursing student. He has denied the entire allegations leveled against him. So from his explanation, it could be seen that his definite case is that the X-ray was taken by him in the presence and with the assistance of a female assistant and in order to get better result while taking the X-ray film, it was required to apply some pressure on the patient, and tha,t it was not with any bad intention and when he was discharging his duty, the patient might have felt some pain because of her physical condition. It is also stated by him that while taking the X-ray, the patient did not express any uneasiness and discomfort and no complaint was raised immediately. So he has requested to accept his explanation and to exonerate him from the alleged charges. But, the disciplinary authority rejected the explanation submitted by him and in the enquiry that was held it was found that he had misbehaved with the patient and the charges levelled against him stands proved. Ext.P7 is the enquiry report submitted by the Enquiry Officer. Acting upon the same, Ext.P8 proceedings were issued by the management and he was dismissed from service with effect from 23.9.2003, the date of his suspension. 8. Then the dispute arose between the employee and the petitioner and as per Ext.P9, the Government have referred the dispute to the Labour Court on 17.3.2006. The issue referred for adjudication under Section 10(1)(c) of the Industrial Disputes Act was '' whether the dismissal of the 2nd respondent, Sri. Krishnakumar, by the petitioner/management is justifiable, if not what relief is entitled for?''. 9. Ext.P10 is the written statement submitted by the petitioner before the Labour Court and Ext.P11 is the Claim Statement of the employee. Before the Labour Court, the management/petitioner had examined MW1, the Enquiry Officer, alone as its witness. Exts.M1 and M1(a) were also marked. No oral or documentary evidence was adduced by the employee. The Labour Court after meticulous evaluation of the evidence concluded that the charges levelled against the employee are illegal and unsustainable and the enquiry was conducted without complying with the mandatory provisions and the fundamental principles of natural justice. The Labour Court has observed as follows: "The charges levelled against the workman which is referred as Exhibit M2(a) in Exhibit M1(a) being against the nature of the allegations in the complaint referred as Exhibit M1 in Exhibit M1(a) and the statement of the complainant as MW1 before the Enquiry Officer and unsupported by any material on record. I have no hesitation to conclude that the charges levelled against the workman are illegal and unsustainable and the report of the MW1 which is marked as Exhibit M1(a) being based on the charges which are found to be illegal and unsustainable that report is also illegal and unsustainable and I find so. 10. I have no hesitation to conclude that the charges levelled against the workman are illegal and unsustainable and the report of the MW1 which is marked as Exhibit M1(a) being based on the charges which are found to be illegal and unsustainable that report is also illegal and unsustainable and I find so. 10. On the said findings, the Labour Court set aside the charges levelled against the workman as well the enquiry report. Ext.P12 is the Preliminary Order of the 0 Labour Court. Thereafter, after considering the evidence, the Labour Court passed Ext. P13 Award on 25.1.2008, directing the petitioner to reinstate the employee in service with all benefits. The operative portion of the Award reads as follows: ''The dismissal of the Workman from the service of the Management with effect from 23.9.2003 was illegal and unjustifiable and the Management is directed to reinstate him in service with all service benefits including continuity of service from the date of his suspension as if no such dismissal was taken place, after deducting the subsistence allowance if any paid during the period of his suspension. The backwages and other benefits due from the date of suspension till the date of pronouncement of this award shall be paid within 60 days from the date of pronouncement of the award, failing which the Workman is entitled to realise that amount with interest at the rate of 9% per annum from the date of pronouncement of the award." So, as per the Award, the employee was directed to be reinstated with backwages and all other benefits due to him 1 from the date of his suspension after deducting subsistence allowance if any paid to him. The said order was challenged in the writ petition. 11. Before the Enquiry Officer, the complainant was examined as MW1. It is pertinent to note that from the evidence of this lady, it is clear that she was admitted in the hospital from 10.9.2003 to 19.9.2003 due to abdomen pain and she was referred for taking X-ray on 12.9.2003 for expert management. According to her, she was taken to X- ray room in a wheel chair accompanied by her husband and when she entered the X-ray room, her husband was asked to remain outside. She further deposed that , the Nurse who was with her asked her to remove the saree and so she removed it. According to her, she was taken to X- ray room in a wheel chair accompanied by her husband and when she entered the X-ray room, her husband was asked to remain outside. She further deposed that , the Nurse who was with her asked her to remove the saree and so she removed it. She made her to lie back on the table so as to take the X-ray by the employee/technician. She further deposed before the Enquiry Officer that then a green cloth was put over her body, and the technician has pressed on her abdomen and she had severe pain on her vagina. She 2 had also deposed that he had pressed on her abdomen only once but she had severe pain and she felt ashamed, but she has not denied the suggestion put to her that he had pressed on her abdomen, as part of taking the X-ray with clarity. Her reply was that she felt pain while he pressed on her abdomen. The fact that the X-ray was taken by him in the presence of a lady has not been denied by her and she do not have a case that she was alone in the X-ray room. Before the Labour Court, the petitioner has not examined the complainant as a witness. But the Enquiry Officer alone was examined. In the Writ Petition, it is alleged by the petitioner that the application for permission to adduce further evidence was dismissed after Ext. P12 as no request was made at the first opportunity. But in the writ petition the relief sought for is only to quash Ext P.12 and P13. 12. The scope of Section 11 A of the Industrial Disputes Act has been dealt with by the Supreme Court in Workmen v. Firestone Tyre & Rubber Co. of India (P)Ltd. [ 1973 (1)SCC 813 as follows : " It is now obligatory on an employer to hold a proper domestic enquiry in which all material evidence will have to be adduced. of India (P)Ltd. [ 1973 (1)SCC 813 as follows : " It is now obligatory on an employer to hold a proper domestic enquiry in which all material evidence will have to be adduced. When a dispute is referred for adjudication and it is found that the domestic enquiry conducted by the management is defective or if it is found that no domestic enquiry at all had been conducted, the order of discharge or termination passed by the employer becomes, without anything more, unjustified and the Labour Tribunals have no option but to direct the reinstatement of the workman concerned, as his discharge or dismissal is illegal. Even in cases where a domestic enquiry has been held and finding of misconduct recorded, the Labour Tribunals have now full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct. Even if the enquiry proceedings are held to be proper and the finding of misconduct is also accepted, the Tribunal has now power to consider whether the punishment of dismissal or discharge was necessary for the type of misconduct of which the workman is found guilty. In such 4 circumstances, the Tribunal can also give any other relief to the workman, including the imposing of a lesser punishment. In such 4 circumstances, the Tribunal can also give any other relief to the workman, including the imposing of a lesser punishment. In cases where an employer had not conducted any enquiry or when the enquiry conducted by him is held to be defective, the employer will not be given any opportunity to adduce evidence before the Labour Tribunal for justifying his action." It is further held that : ''In its very early decision in Buckingham and Carnatic Company Ltd., by its Managing Agents, Binny and Co., Madras v. Workers of the Company, represented by the Madras Labour Union and Madras Taxtile Workers Union the Labour Appellate Tribunal held that the decision of the management in relation to the charges against the employee will not prevail--if." "(a) there is want of bona fides, or (b) it is a case of victimisation or unfair labour practice or violation of the principles of natural justice, or (c) there is a basic error of facts or, (d) there has been a perverse finding on the materials." It was further laid down that an employer ought to 5 have the right to decide what the appropriate punishment for a misconduct should be and its exercise of the discretion in this regard should not be interfered with by a Tribunal unless the punishment is unjust. In Shri Ram Swarath Sinha, Righa, Muzaffarpur v. Management of the Belsund Sugar Company Limited, Righa, Muzaffarpur the Labour Appellate Tribunal has recognised the right of a management to ask for permission to adduce evidence for the first time before the Tribunal to justify its action though no domestic enquiry had been held by it. It has been emphasised that the permission asked for cannot be thrown out in limine on the ground that the management had not made any previous enquiry into the charge. We may say that this decision was in respect of a proceeding under Section 33 of the Act, but, as held by this Court, there is no difference in such matters whether the Tribunal was deciding a dispute referred to it under Section 10 or an application filed before it under Section 33 of the Act. 21. In discussing the nature of the jurisdiction exercised by an Industrial Tribunal when adjudicating a dispute relating to dismissal or discharge, it has been emphasised by this Court in Indian Iron Steel 6 and Co. 21. In discussing the nature of the jurisdiction exercised by an Industrial Tribunal when adjudicating a dispute relating to dismissal or discharge, it has been emphasised by this Court in Indian Iron Steel 6 and Co. Ltd., as follows: "Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere: (i) when there is want of good faith; (ii) when there is victimisation or unfair labour practice; (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials the finding is completely baseless or perverse." ''32. From those decisions, the following principles broadly emerge: "(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is 7 expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned 8 order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about 9 the alleged misconduct. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about 9 the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens within the judicial decision of a Labour Court or Tribunal." 13. In Shankar Chakravarti v. Britannia Biscuit Co.Ltd. and another [ AIR 1979 SC 1652 . the Apex Court held as follows: "Therefore, it is crystal clear that the rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under S.10 or S.33 of the Act questioning the legality of the order terminating service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes 0 an application seeking either permission to take a certain action or seeking approval of the action taken by it. If such a request is made in the statement of claim, application or written statement, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings." 14. But if no such request is made at any stage of the proceedings, there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings." 14. In Edayar Kasheerolpadaka Sahakarana Sangham v. Industrial Tribunal [2007(2)KLT 613, it is held that the Management has to exercise its right of seeking opportunity to lead fresh/additional evidence at the first available opportunity, which is in the written statement itself in industrial disputes under S.10 and immediately after the workman alleges defect in the enquiry in proceedings 1 under S.33 of the Industrial Disputes Act and not at any time thereafter during the proceedings before the Tribunal/Labour Court. 15. It is significant to note that when the dispute was referred to the Labour Court, the petitioner has filed written statement raising the allegation that he has misbehaved to the patient admitted in the hospital and has caused mental agony and pain to the patient by his intentional indecent assault. But it is significant to note that no contention has been raised or no request has been made seeking permission to adduce further evidence before the Labour Court. Of-course, it was contended that his act was with the intention to outrage her modesty. In fact, the complainant herself had deposed before the Enquiry Officer that the employee had taken the X-ray in the presence of a lady nurse, even though her husband was kept outside. But the Enquiry Officer has not examined the nurse at the time of the enquiry as a witness so as to verify whether the 2 charges levelled against him are correct or not, so also she was not examined before the Labour Court. She was a material witness, but the the petitioner has not availed the first opportunity to get her examined before the Labour Court. It is also significant to note that in Ext.P1 complaint, she has stated that her husband as well as a nurse were with her at the time of taking the X-ray by the employee. Of course, when she was examined before the Enquiry Officer, she stated that her husband was asked to remain outside the room but the nurse was with her inside the room. Of course, when she was examined before the Enquiry Officer, she stated that her husband was asked to remain outside the room but the nurse was with her inside the room. But in Ext.P3 charge memo, it is alleged that the employee did not allow either her husband or nurse to enter into the X-ray room against the medical ethics. The complainant do not have such a case. So, it is revealed that the charges levelled against the employee is against the nature of allegations put forth by the complainant. 16. It is to be noted that before acting upon the statement of a witness one must ensure that the same 3 inspires confidence. On a perusal of the evidence of the complainant, it could be seen that sufficient materials are not available so as to infer that the employee has misbehaved to her with the intention to cause disgrace to her at any point of time. Instead, it is clear that he had only discharged his duty as a technician and that too in the presence of the duty nurse who accompanied the lady to the X-ray room. It is pertinent to note that except this complaint, the complainant has not lodged any police complaint against the employee alleging misbehavior or any kind of indecent behavior which caused disgrace to her. The petitioner also did not lodge a complaint against him before the police, though the allegation is a serious one and no explanation is forthcoming. More over, the complainant did not raise the complaint on the very same day or on the next day even though she continued as an inpatient for four more days in the hospital. The nature of the allegations levelled against the employee and the fact that in the domestic 4 enquiry the nurse who accompanied the complainant, was not examined and the other material facts discussed above would draw an adverse inference against the petitioner. It is also pertinent to note that in the statement filed by the petitioner when the dispute was referred to the Labour Court, no request was made to examine the duty nurse as a witness and there was no request to adduce further evidence. We have gone through the record and considered the rival submissions. We do not find anything on record warranting any different view. The allegation leveled against the employee appears to be extremely doubtful. We have gone through the record and considered the rival submissions. We do not find anything on record warranting any different view. The allegation leveled against the employee appears to be extremely doubtful. We are, therefore, not impressed with the submission advanced by the learned counsel for the petitioner/appellant to accept the findings of the Enquiry Officer. In so far as the finding of the learned Single Judge that there is no scope for an improvement of the case of the petitioner even if permission is granted to adduce further evidence also warrant no interference. In the light of principles laid down by the Apex 5 Court in the decisions discussed above, we find no justification whatsoever to interfere with the Award passed by the Labour Court. 17. In view of the aforesaid discussions, we find that the appeal being devoid of merits, stands dismissed, with a modification that the 2nd respondent/workman shall be reinstated in service with 50% of backwages within 30 days from the date of receipt of a copy of this judgment. The appeal is accordingly dismissed.