Both these two Writ Petitions are heard together as they arise out of the award passed on 24.03.2009 in I.D.No.48 of 2005 by the Labour Court-I, Hyderabad.
2. Writ Petition No.12261 of 2009 has been filed by the management while Writ Petition No.2246 of 2010 has been filed by the workman-employee.
3. For convenience sake, the petitioner in W.P.No.2246 of 2010 is referred to as the workman-employee and the petitioner in W.P.No.12261 of 2009 has been referred to as the hotel-industry. The workman-employee joined the hotel to begin with as telephone operator on 01.10.1990. When an incident involving the workman-employee is reported on 31.05.2004, a charge sheet comprising of two charges was drawn against him and communicated by the management of the hotel. The imputation behind the first charge was that the workman-employee has manhandled another employee by name Krishna, stall worker on duty. The second imputation deals with a misconduct committed by the workman-employee by taking the meals instead at the designated area from the specified time span he was taking meals at a different location and that he was ordering the other staff members to fetch him meals as if he were a guest of the hotel. Since the petitioner has denied the imputations, an Enquiry Officer has been appointed to conduct a detailed enquiry into the matter.
4. Sri H.Lakshminarayana, Supervisor, has been examined as M.W.1 while M.Krishna, stall boy, was examined as M.W.2. Eight documents have also been exhibited on behalf of the management. The workman-employee examined himself as D.W.1 but he has not chosen to get any documents marked on his side.
5. The Enquiry Officer has drawn his report on 04.10.2004 holding that the two charges framed against the workman-employee by the management of the hotel have been proved beyond reasonable doubt. Based upon the said report a show cause notice of dismissal has been drawn by the management of the hotel on 08.10.2004 and issued to the petitioner providing him seven days time to offer his explanation. A copy of the report submitted to the Enquiry Officer has been enclosed thereto. The workman-employee has filed his explanation thereon on 12.10.2004. However, not satisfied with the explanation offered by the workman-employee he was dismissed from service by proceedings dated 27.10.2004. Hence, the workman-employee invoked the provision available under Section 2A (2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act’) and raised the Industrial Dispute No.48 of 2005 for setting aside the order, dated 27.10.2004 and to consequently direct the respondent-management of the hotel to reinstate him into service with continuity of service, back wages, attendant benefits and other service benefits. It is this I.D. which has been decided by the Labour Court by its award, dated 24.03.2009 by allowing it duly setting aside the termination from service order, dated 27.10.2004 and directing the management of the hotel to reinstate the workman-employee into service with continuity of service and 50% of back wages besides costs. It is this award which is under challenge by both parties.
6. Apart from raising several other contentions about the lack of maintainability of charges framed against him, the workmen-employee has also challenged the punishment imposed as excessive and harsh. In paragraph No.8 of the claim statement, it is averred by the workman-employee as under:
“Ever since from the date of his removal the petitioner remain unemployee and could not secure any alternative job in spite of his honest efforts and remained unemployee”.
7. Though a plea is raised about the maintainability of the I.D., but however the same was given up before the Labour Court. No such plea has been urged either before me. Ex.M1 is the report said to have been filed by Sri Lakshminarayana, Supervisor, narrating the incident that had taken place around 9.00 p.m. on 31.05.2004. This formed the basis for the charges framed against the petitioner. A copy of this document-Ex.M1 was placed at page No.33 of the paper book filed in support of W.P.No.12261 of 2009. It is drafted in Telugu. It is stated that the room boy-Srinu came and requested for providing meal to the workman-employee. One Beerappa, who was attending to the duties at the stall, gave the meal. However in less than two minutes time the workman-employee came to the stall and pulled the hand of another employee working at the stall by name Krishna and enquired as to who ordered loose curd to be supplied to him in his meal instead of set curd (i.e. good quality curd) normally supplied to the guests of the hotel. The workman-employee was informed that the Supervisor asked loose curd to be supplied to the workmen and hence he was also supplied loose curd. In view of this unpleasant development the Supervisor solicited instructions through his letter, dated 31.05.2004 from the management as to whether the employees of the hotel-industry should be supplied loose curd or set curd (i.e. good quality curd) normally supplied to the guests of the hotel. It is this letter of the Supervisor-Lakshminarayana, which brought about the disciplinary action against the workman-employee.
8. Ex.M1 really contained a statement of fact that the workman-employee concerned pulled the hand of another employee-Krishna who is working at the stall and enquired from him as to who supplied him the meal on that day. This act of the workman-employee, according to the management of the hotel, amounts to manhandling another employee of the industry and it amounts to misconduct. Further, since this complaint-Ex.M1 has recorded that the workman-employee has asked the room boy-Srinu to fetch him the meal, the second charge has also been levelled against the workman-employee that he is utilizing the services of the other employees for the purpose of securing meal to him and that he is consuming the meal at a different place from the one designated for the employees of the hotel to consume food. The charge sheet dated 02.06.2004 is exhibited as Ex.M2. The explanation offered by the workman-employee on 05.06.2004 has been marked as Ex.M3. In his explanation, dated 05.06.2004 the workman-employee has urged that a sum of Rs.375/- per month was deducted from the wages of the workmen as they were supplied food by the hotel-industry. Therefore, it is urged by the workman-employee that they are supposed to be given good quality food items but not poor quality food items. Ex.M4 is the charge sheet framed against the workman-employee in the instant case. Ex.M5 was the detailed explanation offered by the workman-employee on 12.06.2004 to the said charge sheet. Ex.M6 is the notice, dated 15.06.2004 intimating conducting of enquiry. Ex.M7 is the proceeding sheet with regard to another enquiry that was conducted against the same workman-employee on 07.05.1999, and Ex.M8 is the letter of warning given to the workman-employee on 10.05.1999 in view of the regret expressed by the workman-employee at the enquiry proceedings held on 07.05.1999.
9. As noticed supra, the Enquiry Officer held both the charges as established against the workman-employee. It is stated in the Enquiry Officer’s report that the two witnesses examined by the management were very much categorical about the act of the workman-employee of pulling the hand of Sri Krishna in a forceful manner, which is nothing but manhandling. The statement made by Sri Krishna, the employee of the hotel-industry, who was working at the stall at the relevant point of time, shows that he was on duty on 31.05.2004 at the stall and that the workman-employee came in a furious mood and pulled him aside to find out as to who supplied him the meal at that stage. Beerappa, the other employee working at the same stall, informed the workman-employee that it is he who supplied him the meal but not Krishna. It is further averred by Sri Krishna that at that time he was serving the customers of the hotel. The only question which has been put to this witness by the workman-employee in the cross-examination is this: ‘I put it to you that I never touched you at all’. The answer furnished is: ‘It is not stated correct’.
10. The Labour Court had come to a conclusion that pulling the hand of a fellow-employee cannot be considered as manhandling. It may be considered as indecent behaviour and aggressive approach and hence the Enquiry Officer’s report holding the workman-employee guilty of the charges lacks substance or material. In view of this finding of the Labour Court the award was passed ordering for his reinstatement with the benefit of continuity of service and he was also awarded 50% of the back wages.
11. Sri T.Sharath, learned counsel for the management of the hotel, would urge that ‘Chambers’ dictionary defines the verb ‘manhandle’ as to mean to handle or treat roughly. Since M.W.1 has categorically stated in his statement before the Enquiry Officer that the workman-employee in the instant case has pulled his hand, being furious about the poor quality of food items supplied to him, would amount to manhandling only. He would further contend that the hotel-industry is a hospitality industry. Large number of customers and clients would be visiting the place for the purpose of receiving fair and courteous treatment. Any discourteous attitude exhibited by any workman of such a hotel would be completely incompatible with the standards of discipline required to be maintained at such industries. Therefore, the finding of the Enquiry Officer that the workman-employee is guilty of manhandling another employee at work place should not have been interfered with by the Labour Court light-heartedly. Further, it is contended that if any employee exhibits furious moods at work place, particularly where the customers are being served by the other fellow employees, it would cause immeasurable dent to the reputation of the industry as a whole and consequently the interests of the industry would suffer a lot. Therefore he contends that the award of reinstatement of the workman-employee is completely a liability.
12. Per contra, Sri P.Sridhar Rao, learned counsel for the workman-employee, contends that pulling the hand of another employee of the same industry does not amount to manhandling him. Such acts are only intended to draw the attention of another person towards him. When both the employees are working at the same place they maintain lot of cordiality amongst themselves. Therefore, the act of the workman-employee in pulling the hand of another employee does not amount to manhandling. In normal parlance the expression ‘manhandling’ is understood as an aggressive behaviour on the part of one towards the other. Whereas out of a cordial relationship which one enjoys with the other, if a hand of such a person is pulled it does not amount to manhandling at all.
13. Sri P.Sridhar Rao, learned counsel for the workman-employee, would further contend that the intention of the hotel to get rid of his services is writ large. Therefore, hopelessly disproportionate punishment has been imposed on him. He seeks to sustain that part of the award which ordered for his reinstatement. However, he would contend that the Labour Court has erred in not ordering for payment of 100% back wages to him. He placed reliance upon the judgments rendered by the Supreme Court in STATE OF PUNJAB v. JAGIR SINGH (AIR 2004 SUPREME COURT 4757); ALLAHABAD JAL SANSTHAN v. DAYA SHANKAR RAI AND ANOTHER (2005) 5 SUPREME COURT CASES 124) and J.K.SYNTHETICS LTD v. K.P.AGRAWAL AND ANOTHER (2007) 2 SUPREME COURT CASES 433).
14. Ex.M1 did record that the workman employee has pulled the hand of Krishna, another fellow employee of the same hotel, with a view to find out as to who supplied him the meal. The fellow employee-Krishna has been examined as M.W.1. He did depose that on the day in question the workman-employee approached him in a furious mood and pulled him aside and that he was serving the customers of the hotel at that time. It was not even suggested to Sri Krishna that he and the workman-employee are not on cordial terms. As to whether this conduct would amount to a gross misconduct on the part of the workman-employee is the question. The dictionary meaning of the expression ‘manhandle’ undoubtedly refers to treating roughly as amounting to manhandling. In my opinion, the material that was brought on record did not suggest that the workman-employee has treated Krishna roughly at all. Ex.M1 as well as the statement of Krishna merely records that the workman-employee has pulled the hand of Krishna for the purpose of enquiring as to who supplied him the meal on that day. I, therefore, agree with the contention canvassed by Sri P.Sridhar Rao, learned counsel for the workman-employee, that pulling the hand of another co-employee with whom he was having cordial relationship does not amount to a misconduct and that too a grave one warranting a very high-end punishment. In a manpower intensive industry, the workmen while performing the duties are bound to interact with each other in different ways. So long as those ways and means are not offensive or fowl, it cannot amount to a gross misconduct. In a hotel- industry where food items are required to be supplied to the guests of the industry on a regular basis and that too particularly one employee helping the other is not an uncommon feature. A mere handling of one with the other in my considered opinion does not necessarily lead to any inference that one is manhandled by the other. The specific circumstances and the manner in which and the ferocity with which the act of handling has been undertaken can possibly lead to an inference to be drawn with regard to manhandling of one by the other.
15. In the instant case, I have carefully gone through the contents of Ex.M1, which is written in Telugu language. I have also perused the statement of M.W.1-Krishna but I am not able to come to a conclusion that the workman-employee in the instant case has manhandled the other employee, namely Krishna.
16. With regard to the second charge-Ex.M1 undoubtedly discloses that the workman-employee has asked the room boy-Srinu to fetch him the meal. It is thereafter the workman-employee went near the stall where Beerappa and Krishna were serving the customers of the hotel. In it’s terms, this exhibit, perhaps, can help to hold that the workman-employee has used the services of another co-employee to fetch him the meal and even if that amounts to a misconduct it is relatable to a minor scale. Utilizing the services of another employee for fetching the meal though could be improper, does not amount to a grave misconduct. I consider, therefore, that the Labour Court is justified in its opinion that the act of the workman-employee could at best be considered as indecent behaviour and aggressive approach.
17. I have not found any material to discard the opinion of the Labour Court that the punishment imposed to the workman-employee is too harsh and too disproportionate. Though the award does not say in so many words, it is normally discernable that the Labour Court has exercised the power available to it under Section II-A of the Act and it is thoroughly justified in ordering for the reinstatement of the workman-employee. No inference need be drawn thereto.
18. Then comes the question as to how the back wages have got to be regulated. In my opinion, the principles on the subject have been very crisply crystallized by the Supreme Court in J.K.SYNTHETICS LIMITED’s case (3rd cited supra). It is now made very clear by the Supreme Court that while granting the relief, application of mind on the part of the Industrial Court is imperative and payment of full back wages cannot be the natural consequence. Several decisions rendered earlier have been reviewed for the purpose of determining the quantum of back wages that could be awarded in such cases. In J.K.SYNTHETICS LIMITED’s case (3rd cited supra) the principles set out by the Supreme Court earlier in the case of KENDRIYA VIDYALAYA SANGATHAN v. S.C.SHARMA (2005) 2 SCC 363), have been approvingly quoted. It is stated in KENDRIYA VIDYALAYA SANGATHAN’scase (4th cited supra) that the initial burden that the workman-employee has not been gainfully employed lies on him and if he places materials in that regard, the employer can bring on record the materials to rebut the claim. It is therefore necessary for the workman-employee to plead that he was not gainfully employed form the date of his termination while such an employee cannot be asked to prove the negative, he has to atleast assert on oath that he was neither employed nor engaged in any gainful business and that he did not have any income. Then the burden shifts on to the employer.
19. It is contended by Sri P.Sridhar Rao, learned counsel for the workman-employee, that the workman-employee in paragraph No.8 of his claim statement has asserted that he remained unemployed and could not secure any alternative job in spite of his honest efforts and hence remained unemployed. Since the management of the hotel did not rebut such a statement of fact the workman-employee is entitled to be paid 100% back wages.
20. Going by the principles deduced by the Supreme Court in this regard, the award passed by the Labour Court is bereft of any reasons as to why it has awarded 50% of back wages to the workman-employee or as to why it was denying him the balance 50% of back wages. Reasons are the only reflections of the application of mind. In such circumstances the award passed by the Labour Court has to be set aside and remanded.
21. As is noticed supra, the employee has been dismissed from service on 27.10.2004 and the award was passed by the Labour Court on 24.03.2009 i.e. around 4 years later. The workman-employee was working as a telephone operator. He has not produced any material as to the honest efforts stated to have been undertaken by him to secure alternative employment. Strictly speaking he may not be required to produce the same as a piece of evidence but atleast to inspire confidence in the mind of a neutral agency, he should have been clear in spelling them out. A terse statement that in spite of honest attempts he could not secure alternative employment is too cold a statement for one to secure 100% back wages. I therefore find that ends of justice have been adequately met when the workman-employee has been awarded 50% of the wages. I therefore do not find any material to order for 100% of payment of back wages as a matter of routine. Hence, both the Writ Petitions fail, but however the parties will bear their respective costs.
22. Accordingly, Writ Petitions are dismissed. Miscellaneous Petitions, if any, shall stand closed.