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The Management of English Electric Company of India Ltd. Vs. the Presiding Officer Lahour Court and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1975)IILLJ430Mad
AppellantThe Management of English Electric Company of India Ltd.
RespondentThe Presiding Officer Lahour Court and anr.
Cases ReferredBinny Limited v. Their Workmen
Excerpt:
.....in the same order. it is impossible to correlate these heads of misconduct with the four charges held proved by the enquiry officer against the second respondent, namely charges 2, 3, 5 and 6. therefore, it would have been extremely difficult, if not impossible, for a person like the second respondent to find out what charge could be brought under which head of misconduct. generally speaking, where an order is based on more grounds than one which are not alternative, and one or more of them are found to be bad, and there is no evidence or indication that the order would have been made on the surviving ground or grounds, it will have to be quashed in its entirety. in my opinion, the reasoning of the bench in that case directly applies to the facts of this case and therefore i am clearly..........in going into the evidence in this case and coming to the conclusion that out of the four charges held proved against the second respondent, two of them, namely charges nos. 2 and 5, must have been held not proved against the second respondent. for the purpose of understanding the arguments, it is necessary to refer to what exactly the enquiry officer has found and what exactly the labour court has held. as far as charge no. 2 is concerned, it was one sethumadhavan who gave evidence in support of the charge. with regard to this sethumadhavan, the enquiry officer recorded as follows:the suestions asked by mr. c.s. meenakshisundaram (the second respondent) were considered irrelevant and disallowed by the enquiry officer. the charge-sheeted worker and his observer insisted that the.....
Judgment:
ORDER

Ismail, J.

1. The second respondent herein was an employee of the petitioner-company and on 9th April, 1969, the following six charges were levelled against the second respondent:

It has been reported against you:

(i) that on 1st April, 1969 at about 1.15 P.M. you are instructed by the Senior Foreman, Mr. E. Balasubramanian, to stop all other work and carry out immediate welding of Sedgwick Punching Machine bed. Despite these clear instructions, you did not undertake this job, which resulted in delay in the repair of this vital machine, thereby adversely affecting production.

(ii) that on 2nd April, 1969 at about 4-40 P.M., it was observed by the Superintendent of the Department, Mr. A. Sethumadhavan, that neither yourself nor any of the welders under your control were present in the welding section,

(iii) that on 3rd April, 1969 you came to the section at about 7-36 A.M., and it was observed by the Superintendent, Mr. A. Sethumadhavan, that the men in your section were remaining idle for want of instructions from you.

(iv) that you unauthorisedly signed the ' Movement Pass' for Mr. A. Chinnadurai, Clock No. 389 on more than one occasion.

(v) that on 7th April, 1969 at about 1.0-00 A.M. you shouted at Mr. P.V. Ganesan, Assistant Superintendent, while he was giving instructions to you regarding welding of a Fuse-gear Component and you were very rude and disrespectful to your Superior when he was explaining the details of the job.

(vi) that as a Group Leader, you are setting a bad example by invariably coming late to the department.

2. In addition to alleging these charges against the second respondent the charge-sheet proceeded to state;

You are, therefore, called upon to show cause in writing within two days of receipt of this charge-sheet, why disciplinary action should not be taken against you for the following misconducts.

(i) 'Willful insubordination or disobedience of any lawful and reasonable order of a superior.' (Standing Orders-Section 21(1)

(ii) 'Neglect of work.' (Standing Orders Section 21(13)).

(iii) 'Gross and deliberate violation of any law applicable to the Establishment or any rules made thereunder.' (Standing Orders-Section 21(8)).

(iv) 'Disorderly or improper behaviour,' Standing Orders--Section 21(II)),

(v) 'Habitual late attendance.' (Standing Orders-Section 21(7)).

(vi) 'Commissioner of any act or conduct subversive of the discipline of the establishment.' (Standing Orders--Section 21(12)).

3. The second respondent submitted his explanation and an enquiry was conducted and the enquiry officer dropped charges Nos. 1 and 4 and held the petitioner guilty of the other four charges. On the basis of the enquiry officer's report, the second respondent was discharged from service by an order, dated 11th June, 1969. This discharge of the second respondent gave rise to an industrial dispute and the Government in G.O.R. No. 404, Labour Department, dated 27 the February, 1970, referred the non-employment of the second respondent for adjudication to the Labour Court, Madras. The Labour Court by its award, dated 6th September, 1971, in Industrial Dispute No. 38 of 1970 held that the second respondent should be reinstated without any emoluments but with continuity of service. It is to quash this award of the Labour Court, the present writ petition has been filed by the Management.

4. The learned Counsel for the petitioner contends that the Labour Court exceeded its jurisdiction in going into the evidence in this case and coming to the conclusion that out of the four charges held proved against the second respondent, two of them, namely charges Nos. 2 and 5, must have been held not proved against the second respondent. For the purpose of understanding the arguments, it is necessary to refer to what exactly the enquiry officer has found and what exactly the Labour Court has held. As far as charge No. 2 is concerned, it was one Sethumadhavan who gave evidence in support of the charge. With regard to this Sethumadhavan, the enquiry officer recorded as follows:

The suestions asked by Mr. C.S. Meenakshisundaram (the second respondent) were considered irrelevant and disallowed by the enquiry officer. The charge-sheeted worker and his observer insisted that the questions must be admitted. The enquiry officer refused. Title charge-sheeted workman and his observer wanted that the questions should be recorded as not admitted, the enquiry officer refused. Thereupon the charge-sheeted workman and the observer indicated that they did not want to participate in the enquiry any further. The enquiry officer asked the charge-sheeted workman twice whether their decision not to participate was in respect of charge No. 2 only or other charges also. The stated that they don't want to participate any further in the enquiry.

The enquiry officer pointed out that the enquiry will proceed ex parte even though the charge-sheeted workman and his observer were not willing to participate.

Thereupon the charge-sheeted workman and his observer agreed to participate in the enquiry.

There was no cross-examination of Mr. A. Sethumadhavan by Mr. C.S. Meenakshisundaram.

5. From this, it is absolutely clear that the conduct of the enquiry officer in preventing the second respondent from questioning the witness A. Sethumadhavan was certainly in violation of the principles of natural justice. As matter of fact, it should not be forgotten that the enquiry officer's report had to be considered by the competent authority who alone had to take a final decision in this behalf. Therefore, even if the enquiry officer was not willing to admit the questions, certainly there was no justification for him in not even recording all the questions he was not willing to admit. If he has recorded those questions at least, the competent authority would have been able to peruse the same and make up his mind whether the disallowance of the questions was proper or not. Therefore, the enquiry officer, in so far as he prevented the second respondent from putting some questions to the witness A. Sethumadhavan and even refused to record those questions, was acting in violation of the principles of natural justice and it is this that the Labour Court has pointed out with regard to charge No. 2.

6. In addition to this, there is yet another defect in the conclusion of the enquiry officer with regard to this charge. Before the enquiry officer, the second respondent, with regard to charge No. 2 had categorically stated that he denied the allegation. Notwithstanding this the enquiry officer concludes that the second respondent did not deny that he was not in his work-place at 4-40 P.M. on 2nd April, 1969. Therefore, apart from there being violation of principles of natural justice, the finding of the enquiry officer on this charge is patently perverse, in so far as it proceeded on the basis that the second respondent has not denied that he was not in his work-place at 4-40 P.M. on 2nd April, 1969 when he had actually denied the allegation II. The next charge which loomed large in the view of the Labour Court is charge No. 5. With regard to this charge, the enquiry officer has recorded the following:

This is a serious charge, supported by the evidence of S. Gopalakrishnan. The charge-sheeted workman has denied the charge and his two witnesses state that Mr. Meenakshisundaram did not use abusive language. However, the two witnesses, Mr. Devaraj and Mr. Mani have given statements which appear to be extremely identical and somewhat tutored. However, it is difficult to believe that a person will behave truculently and use abusive language against his superior without provocation. There must have been exchange of words and provocation. However, provocation is no justification for disrespectful and rude behaviour to one's superior. I, therefore, hold this charge proved.

7. The Labour Court has considered this finding of the enquiry officer with regard to charge No. 5 and has come to the conclusion that having regard to the very conclusion of the enquiry officer himself, that there must have been provocation, the charge cannot be said to have been serious if it had been held proved. For the purpose of understanding the substance of the charge, it is necessary to state what exactly were the words that were said to have been used by the second respondent which according to the petitioner constituted disrespectful and rude behaviour towards the superiors. The second respondent was alleged to have told one P.V. Ganesan, ('Sarithan Poya, Unnal Anathai Parthuko'). The witness in support of this charge was one R. (Sic) Gopalakrishnan, who stated that on 7th April, around 10 a.m., he heard argument between Mr. P.V. Ganesan and C.S. Meenakshisundaram; he heard Meenakshisundaram telling, Ganesan: Consequently all that was held proved before the enquiry officer was that the second respondent uttered those words to P.V. Ganesan. The question for consideration is whether that evidence can be said to have established the charge. As I pointed out already, the enquiry officer himself has held that there must have been provocation for the second respondent using that language. If that provocation is admitted, certainly the charge with reference to the use of that language loses its severity and therefore it cannot be said to be a serious charge. As a matter of fact, the Labour Court itself has pointed out that having regard to the language generally used by labourers in Madras, the language employed by the second respondent namely' cannot be said to be a rude or disrespectful language but a normal language prevalent among the labourers herein. I am unable to hold that the Labour Court, committed any error in this behalf. On the other hand, the conclusion of the enquiry officer that notwithstanding the provocation which made the second respondent use this language, the charge framed against him was proved, is certainly a perverse conclusion.

8. With regard to the other charges namely charges Nos. 3 and 6, the Labour Court agreed with the conclusion of the enquiry officer that the charges had been proved. Having come to this conclusion, the Labour Court then points out that with regard to charge: Nos. 3 and 6 which alone have been held proved the punishment of discharge from service was a disproportionately severe one and therefore the second respondent was entitled to be reinstated without back-wages but with continuity of service.

9. Having regard to the conduct of the enquiry officer with regard to the enquiry relating to charge No. 2 Mr. S. Ramasubramaniam, the learned Counsel for the petitioner found it very difficult to challenge the conclusion of the Labour Court with regard to that charge. As far as charge No. 5 is concerned Mr. Ramasubramaniam made an attempt to show that the Labour Court was mistaken. Notwithstanding the loose and infelicitous language employed by the Labour Court, the conclusion of the Labour Court is definite with regard to these two charges. As I pointed out already, the Labour Court's conclusion with regard to charges 2 and 5 cannot be said to be erroneous from any point of view. If so the only other point that is for consideration is whether the Labour Court can interfere with the punishment imposed on the second respondent not withstanding its conclusion upholding the charges 3 and 6. Mr. Ramasubramaniam contended that once the Labour Court came to the conclusion that the charges Nos. 3 and 6 were held proved it ought not to have interfered with the punishment. I am unable to accept this argument.

10. In this case there is one curious feature. I have already extracted the six charges levelled against the second respondent. In addition to the six charges, the notice containing the charges also referred to the relevant standing orders. I have asked Mr. Ramasubramaniam whether it is possible for him to correlate the six charges levelled against the second respondent with the heads of misconduct contained in the standing orders referred to in the notice itself and already extracted. Even though Mr. Ramasubramaniam tried his best to correlate them, he had to concede that the correlation is not in seriatim and therefore it is not possible to hold that the charges given in the particular order tallied with the heads of misconduct given in the notice itself in the same order. This has got significance having regard to the terms in which the order of discharge was passed by the Director and General Manager of the Petitioner company. As I pointed out already the order was dated 11th June, 1969 and that order is as extracted below:

With reference to the charge-sheet dated 9th April 1969, which was given to you on 10th April, 1969 and the subsequent enquiry held on 25th April, 1969, on a very careful examination of the enquiry proceedings, we have come to the conclusion that the following charges specified in the charge- sheet given to you have been proved.

(i) 'Neglect of Work ' (Standing Orders--Section 21(13))

(ii) 'Disorderly and improper behaviour' (Standing Orders: Section 21(11))

(iii) 'Habitual late attendance' (Standing Orders--Section 21(7)).

(iv) Commission of any act or conduct subversive of discipline of the Establishment (Standing Orders--Section 21(12)), 'The misconduct you have been found guilty of its sufficiently grave to merit your dismissal from the Company's service; however, we have taken into consideration your past record and other extenuating circumstances of the case and have decided to discharge you from the company's service in accordance with the company's standing orders. Your services are terminated with effect from 5-15 p.m., on 11th June, 1969. You will be paid one month's pay in lieu of the notice period as per the company's standing orders. You may collect this along with your other dues from our company, Finance Department on 13th June, 1969.

11. The peculiarity of this order is that it did not refer to the actual charges levelled against the second respondent but merely referred to the heads of misconduct as contained in the standing orders. It is impossible to correlate these heads of misconduct with the four charges held proved by the enquiry officer against the second respondent, namely charges 2, 3, 5 and 6. Therefore, it would have been extremely difficult, if not impossible, for a person like the second respondent to find out what charge could be brought under which head of misconduct. This assumes importance in respect of one other matter also. With reference to charge No. 2, the claim of the petitioner is that it comes under Standing Order 21(13). Standing Order 21(13) mentions 'Habitual negligence or neglect of work.' The second respondent contended before the enquiry officer that the word 'Habitual' will qualify the words 'neglect of work' also; therefore even if charge No. 2 was held proved it could not be held that second respondent is guilty of misconduct as defined in standing orders Section 21(13). This aspect was not considered by the enquiry officer, at all. I am mentioning this merely for the reason that the order of discharge dated 11th June, 1969 cannot be said to be clear, as to under which provision of the standing orders, with reference to which of the charges held proved, that the second respondent was discharged from service even though generally, in view of the terms of the order, it can be said that the second respondent was discharged from service for the four charges held proved by the enquiry officer. But one thing is clear that the order of discharge was based upon all the four charges held proved against the second respondent by the enquiry officer and not with reference to any particular charge out of the said four charges. With reference to such a situation, a Bench of this Court (Veeraswami. J.) as he then was and Khunhamed Kutti, J.) in Bank of Madura, Limited, Madurai v. Bank of Madura Employees Union, Coimbatore and Ors. 1965 L.L.J. 44, held that the Labour Court had jurisdiction to consider the question whether the punishment imposed would have been imposed on the basis of the charges proved arid if there was no evidence to show that the punishment would have been imposed even with regard to the charges held proved by the Labour Court, the Labour Court was justified in setting aside the punishment. The Bench pointed out:

On the observations we have made supra, it follows that the Tribunal was not justified in describing as perverse the enquiry officer's findings on charges 1, 3 and 4 against Sambandam. The question then arises whether the Tribunal's award in respect of him cannot be sustained on the enquiry officer's finding on the second charge. Generally speaking, where an order is based on more grounds than one which are not alternative, and one or more of them are found to be bad, and there is no evidence or indication that the order would have been made on the surviving ground or grounds, it will have to be quashed in its entirety.

12. In support of this conclusion, the learned Judges referred to the Judgments in Swami Motor Transport Limited v. Raman and Raman Limited A.I.R. 1961 Mad. 180, Kalindi v. Tata Locomotives and Engineering Co. 1960 L.L.J. 228; and State of Orissa v. Bidyabhushan Mohapatra 1963 L.L.J. 239; and a Bench decision of this Court itself in Royal Printing Works v. Industrial Tribunal 1963 L.L.J. 60. On a consideration of these authorities, the Bench came to the conclusion that the order of the Secretary of the Management in that case terminating the services of Sambandam was in excess of his powers. In my opinion, the reasoning of the Bench in that case directly applies to the facts of this case and therefore I am clearly of the opinion that the Labour Court was justified in holding that the discharge was not justified with reference to the two charges held proved, namely charges 3 and 6, and in directing the reinstatement of the second respondent without any emoluments but with continuity of service. The same result also flows from the decision of the Supreme Court in Binny Limited v. Their Workmen 1972 L.L.J. 478. Under these circumstances, the writ petition fails and is dismissed. No costs.

13. Since the second respondent herein was not represented before this Court, I requested to Mr. N.G.R. Prasad, Advocate to assist me as amcius curiae and he has done so. I therefore record my thanks to him in appreciation of the help rendered by him.


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