Madras High Court
R.Krishnan vs The Management Of Craigmore ... on 8 February, 2021
W.P.No.741 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.P.No.741 of 2006
R.Krishnan ... Petitioner
Vs.
1.The Management of Craigmore Estate,
Kullakam (Post),
Nilgiris - 643 218.
2.The Presiding Officer,
Labour Court,
Coimbatore - 18. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records on the file of
the second respondent relating to the preliminary order dated 11.02.2003 and
the Award dated 07.08.2003 in I.D.No.204 of 2000, and quash the same and
consequently direct the first respondent to reinstate the petitioner in service
with backwages, continuity of service and all other attendant benefits.
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W.P.No.741 of 2006
For Petitioner : Mr.V.Ajoy Khose
For Respondent : Mr.T.S.Gopalan & Co., for R-1
R-2 (Labour Court)
ORDER
This writ petition has been filed by the petitioner / workman, challenging
the award passed by the Labour Court dated 07.08.2003, made in I.D.No.204 of
2000, confirming the finding of the first respondent, leading to the dismissal of
the petitioner from service.
2. The brief facts leading to file the present writ petition is as follows:-
2.1. The petitioner was appointed as a night watchman in the first
respondent-Estate Dripping Irrigation Systems on 01.07.1985. There were three
workers looking after the Dripping Irrigation Systems on shift basis. The
petitioner was an active member in the H.M.S. Union and the members of the
said Union were disliked by the Management, and hence, the Management began
picking up the Union activists and victimizing them.
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W.P.No.741 of 2006
2.2. It is case of the petitioner that on 01.05.1999, when he went for
duty at 5. p.m., one Govindarajan, who attended the prior shift was not present
to hand over the duty to the petitioner and he found that dripping irrigation
system was damaged in many places and he reported the same to the higher
authority. The Higher Authority enquired the two watchmen in charge of the
day time duty and the petitioner regarding the damage caused to the Estate
Dripping Irrigation System.
2.3. Thereafter, a Charge Memo, dated 03.05.1999 came to be issued to
the petitioner and other two employees, viz., Govindaraj and Gunasekar and
alleging (i) wilful insubordination to the lawful orders of the superiors, by not
following the instructions regarding taking over of the system over a period of
time; (ii) Dishonesty affecting the property of the employer by the same act by
not carrying out the work in a proper way by being alert; (iii) Breach of
instructions in maintaining the system operated by him; (iv) Bad work causing
damage to the property of the Estate as stated by not taking due care of the
system he has paved the way for the stem to get damages and thereby, (v)
committed acts subversive of discipline.
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W.P.No.741 of 2006
2.4. An enquriy was initiated and witnesses were examined on both sides.
Documents were also filed on both sides. The Enquiry Officer gave his report
finding that the petitioner was guilty of all the charges framed against him on
17.05.1999. The second show-cause notice was issued to the petitioner on the
basis of the Enquiry Officer's finding on 18.05.1999 and asked to show cause
within 72 hours from the receipt hereof. The petitioner gave his reply on
24.05.1999. Thereafter, the first respondent, passed an order on 26.05.1999,
terminating the services of the petitioner with effect from 27.05.1999.
3. In the counter filed by the first respondent, it is alleged that on
account of the negligence of the petitioner, and other two employees, viz.,
Govindaraj and Gunasekar, in duty, irrigation system equipment worth
Rs.15,000/- was damaged, as a result of which, the system was valued at
Rs.5,00,000/- was not in a position to be operated. The other employees, viz.,
Gunasekar and Govindaraj, approached the first respondent during September,
1999, seeking reinstatement and after bipartite discussion, they were reinstated
into service on 01.10.1999. However, the petitioner did not choose to approach
the first respondent, either by himself or through any of the recognized Union,
and on the contrary raised a dispute, challenging the order of termination.
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W.P.No.741 of 2006
4. Before the Labour Court, on the side of the workman/petitioner, eight
documents were marked and no witnesses have been examined by either side.
The second respondent-Labour Court, after considering documentary evidence
let in on behalf of the writ petitioner, by the impugned order, confirmed the
order of dismissal order passed by the first respondent.
5. The learned counsel for the petitioner would mainly contend that the
domestic enquiry was unfair and illegal, since the petitioner was not given
enough time to prepare for the cross-examination of the witnesses by the first
respondent-Management, which is violation of principles of natural justice and
even in the Industrial Dispute raised by the workman, the same was not
considered by the Labour Court. Further, non-furnishing of documents and list of
witnesses with the charge sheet amounted to depriving the petitioner of a
proper opportunities, and hence, the enquiry proceedings was unjust and unfair
and prayed for setting aside the order of the Labour Court. It is the further
submission of the learned counsel that there is no evidence to prove that other
two security staff were present till the petitioner came and reported for duty on
01.05.1999 and it is not proved that they handed over the duty to the
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W.P.No.741 of 2006
petitioner. It is also submitted that the order of dismissal of the service of the
petitioner jeopardizes his livelihood and the livelihood of the dependants. It is
further contended that similarly placed persons have already been reinstated
into service, but the petitioner was forced to get remedy through legal forum.
Hence, the learned counsel prays for setting aside the order of the Labour
Court.
6. The learned counsel, in support of his contentions, has cited the
following judgments:-
(i) Deli Cloth and General Mills Vs Ludh Budh Singh [(1972) 1 SCC 595]
(ii) C.Kumaraswami v. Third Additional Labour Court [1993-I LLN 785]
(iii) Colour-Chem. Ltd., V. Alaspurkar A.L.& Ors. [C.A.No.510 of 1992]
(iv) Mgmt. Cheran Trs. Corpn. V. G.Balasubramaniam
[2003 (3) LLN 301]
(v) Tata Engineering & Locomotive Co. Ltd., Vs. Jitendra PD Singh and
another [(2001) 10 SCC 530]
(vi) State of Uttar Pradesh and others Vs. Rajpal Singh [(2010) 5 SCC
783]
(vii) Madura Coats. Ltd., V. P.O., Labour Court [2004 (1) LLN 767]
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(viii) M.V.Bijlani V. Union of India and others [(2006) 5 SCC 88]
(ix) Collector Singh Vs. L.M.L. Limited, [(2015) 2 SCC 410]
7. The learned counsel appearing for the second respondent, on the
other hand submitted that the Labour Court had rightly come to the conclusion
that the acts indulged by the workman was negligent, which resulted loss of
several lakhs to the Management and therefore, order of dismissal passed by the
first respondent, was confirmed by the Labour court, which warrants no
interference.
8. Heard the learned counsel on either side and perused the materials
placed on record.
9.1. The first contention of the learned counsel for the petitioner is that
the action of the Management in asking the petitioner to cross-examine the
witnesses on the same day without giving him time to prepare and when he was
not afforded any assistance in the enquiry was highly unfair and unjust, which is
in violation of principles of natural justice.
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9.2. A charge memo came to be issued to the petitioner dated
03.05.1999, stating that the petitioner was negligent in discharging duties,
which resulted in unknown persons entering the premises and caused damage to
the property of the Management, and the petitioner was asked to appear
before the Enquiry Officer on 07.05.1999, at 10. a.m. Thereafter, on
07.05.1999, an Enquiry was conducted. On 07.05.1999, the Management
examined one Asirvatham, the complainant, who was the Assistant Field Officer
and P.K.Manoj, Assistant Manager and the petitioner was asked to cross-examine
these two witnesses. Thereafter, the enquiry was adjourned to 08.05.1999 and
on that day, the petitioner had to continue the cross examination of P.K.Manoj
and the Management's next witness Kutthi Natha, the supervisor. Subsequently,
the Enquiry was adjourned to 11.05.1999. Thereafter, on 17.05.1999, the
Enquiry Officer filed a report that the petitioner was guilty of all the charges
framed against him. Subsequently, based on the Enquiry Officer's finding,
second show-cause notice was issued on 18.05.1999, and after receipt of
petitioner's reply dated 24.05.1999, dismissal order was passed on 26.05.1999.
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9.3. Simply because of the fact that the enquiry officer did not adjourn
the matter for longer dates or had concluded the evidence on a single date
cannot lead to draw an inference that the principles of natural justice were not
followed by the enquiry officer. It is well settled that the rules of natural justice
are not embodied rules. The question whether in a given case the principles
have been violated or not has to be found out on consideration as to whether
the procedure adopted by the appropriate authority is fair and proper or not. In
other words, what is required to be examined is whether the delinquent knew
the nature of accusation against him whether he was given sufficient
opportunity to state his case and whether the enquiry officer adopted a fair
procedure during the proceedings. If these requirements are satisfied then it
cannot be said that the principle of natural justice were violated. Be that as it
may, mere duration or length of Disciplinary enquiry is not sufficient to prove
that the principles of natural justice were violated rather the entire
circumstances have to be taken into consideration to reach to any conclusion. It
is now a settled principle of law that rules of natural justice ought not to be
applied in an abstract manner or as a straight-jacket formula. The main test is
whether any real prejudice has been caused to the respondent workman or not.
In the present case, it cannot be said that any real prejudice has been caused to
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the petitioner workman that he was asked to cross-examine the management
witnesses on 11.05.1999 itself, when the Management had produced the witness
on the same day, i.e, on 11.05.1999. It would be thus evident that no haste
was shown by the enquiry officer in conducting the enquiry proceedings, rather
sufficient opportunity was given to the respondent which opportunity was not
availed by the petitioner himself. I, therefore, do not find that the enquiry
officer did not observe the principles of natural justice in conducting the
enquiry proceedings and simply because of the fact that enquiry proceedings
culminated in a short span that would not lead to the conclusion that principles
of natural justice were violated by the enquiry officer.
10.1 The next contention of the learned counsel for the petitioner is that
during domestic enquiry, the petitioner had asked for the list of witnesses,
however, the same were not furnished to him and therefore, without giving
sufficient opportunity, the enquiry was conducted.
10.2. The Labour Court, on proper appreciation of evidence, held that
the plea of the petitioner that neither the list of witnesses nor documents were
produced, was not considered for the reason that admittedly, the petitioner has
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W.P.No.741 of 2006
signed in all the documents for having received the same. It is to be noted that
during enquiry, the petitioner was assisted by an observer, Sri Senthil Kumar
C/R 1827 and cross-examined the list of witnesses adduced by the first
respondent. Further, on the conclusion of the enquiry, the petitioner examined
one Ganesan and also gave a detailed statement. On a consideration of the
materials produced during the enquiry, the Enquiry Officer gave cogent reasons
finding the petitioner guilty of the charges and only thereafter, the petitioner
was dismissed from service.
11. The other contention with regard to the petitioner had not taken
charge properly from the two workmen of the earlier shift, the Labour Court, on
appreciation of the pleadings and evidence rightly came to the conclusion that
the petitioner had not taken charge properly from the two workmen of the
earlier shift and the petitioner having not proved that, the damage to the
equipment had occurred prior to his taking charge, it wound appear that the
damage to the equipment had only taken place during the time when the
petitioner was on duty.
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W.P.No.741 of 2006
12. Insofar as quantum of punishment is concerned, the Labour Court had
rightly observed that it was not possible to reinstate the petitioner who caused
loss of several lakhs and only if a severe punishment imposed on persons, the
same would act as a deterrent and held that the mistake committed by the
petitioner was grave and held that the dismissal of the petitioner was perfectly
justified.
13. The final contention of the learned counsel for the petitioner is that
the other employees, viz.,Gunasekar and Govindaraj have been reinstated into
service, for the same set of charges, however, in the case of petitioner, it was
denied. As it could be seen from the counter affidavit, as against the dismissal
order passed by the first respondent, the other employees, viz, Gunasekar and
Govindaraj have approached the first respondent-Management and accepted
their guilt and tendered their apology. On the basis of their representation, the
Management-, reinstated them into service. However, the petitioner has
resorted out to get his grievance by raising an Industrial Dispute. The Labour
Court, on proper appreciation of evidence, confirmed the order of dismissal
passed by the first respondent.
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W.P.No.741 of 2006
14. The learned counsel for the petitioner has cited catena of decisions.
There is no quarrel over the principles laid down therein, but in the considered
view of this case, the discussions referred supra, the decisions relied on by the
learned Senior Counsel for the petitioner, have no application to the facts of
this case, as they are distinguishable on facts.
15. It is settled legal principles that High Court under Article
226 and 227 of Constitution of India is very wide and extensive to control over
the courts and Tribunals through out territories and in relation to exercise
jurisdiction. Such power must be exercised within limits of law. The High Court
does not act as a court of appeal or a court of error and take neither review or
re-appreciate nor reweigh the evidence upon which the determination of the
Subordinate Court or inferior Tribunal, or correct the error of facts or even the
law and to substitute its own decision as that of inferior tribunal or Court. It is
also settled legal principles that, this Court, unless there was miscarriage of
justice or fragrant violation of law calling for intervention, cannot interfere
under Article 226 or 227 of the Constitution of India. Under Article 226, the High
Court is required to enforce the Rule of Law and ensure that the Authorities and
Organs of the State should be directed only to act in accordance with law.
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Ordinarily, Writ Jurisdiction cannot be invoked for directing the Authorities to
act contrary to law.
16. In view of the above observation and discussions, this court cannot
interfere with the Award of the Tribunal as there was no miscarriage of justice
or the award has been passed on no evidence or the findings are perverse.
Moreover to invoke Articles 226 and 227 of the Constitution of India, the parties
have to make out extraordinary case pointing out error apparent on the face of
the record. In this case, no such case has been made out.
17. In fine, the Writ Petition fails, and accordingly, it is dismissed.
However, there shall be no order as to costs.
08.02.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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W.P.No.741 of 2006
To
The Presiding Officer,
Labour Court,
Coimbatore - 18.
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W.P.No.741 of 2006
P.VELMURUGAN, J.
rns
W.P.No.741 of 2006
08.02.2021
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