K.Dharmaraj Vs. Mtc Ltd Chennai - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169831
CourtChennai High Court
Decided OnNov-04-2013
JudgeN.PAUL VASANTHAKUMAR
AppellantK.Dharmaraj
RespondentMtc Ltd Chennai
Excerpt:
in the high court of judicature at madras dated :04. 11.2013 coram the honourable mr. justice n. paul vasanthakumar and the honourable mr. justice r. mahadevan writ appeal no.2078 of 2010 and m.p.no.1 of 2010 k.dharmaraj ... appellant vs.1. the management of metropolitan transport corporation ltd., (formerly known as pallavan transport corporation ltd.,) chennai  600 002.2. the presiding officer principal labour court chennai. ... respondents writ appeal filed under clause 15 of the letters patent against the order made in w.p.no.37820 of 2002, dated 21.7.2010. for appellant : mr. k.m.ramesh for respondent no.1 : mr.v.r.kamalanathan judgment (judgment of the court was delivered by n.paul vasanthakumar, j.) this writ appeal is filed against the order made in w.p.no.37820 of 2002, dated 21.7.2010, wherein the learned single judge set aside the award passed by the labour court made in i.d.no.624 of 1996, dated 5.4.2002 on the ground that the labour court had relied on fresh evidence, after giving a finding regarding the correctness of the enquiry, apart from the materials placed before the enquiry officer both by way of oral and documentary evidence, and remitted the matter to the labour court to consider the materials available on record for exercising the power under section 11-a of the industrial disputes act, 1947, by eschewing the evidence let in before the labour court in respect of the merits of the matter regarding the preliminary issue.2. the learned counsel appearing for the appellant submitted that the fairness of the enquiry was questioned before the labour court as a preliminary issue and the workman himself was examined as w.w.1 on 29.4.1998 and the management witness, viz., kalaimani was examined as m.w.1 on 20.4.1999 and the finding was given regarding the preliminary issue on 17.11.1999 regarding the fair and proper conduct of the enquiry and only on 23.5.2001, the management witness m.w.2-kumaravijayam deposed regarding the past conduct, and his statement was marked to arrive at a conclusion by exercising the power under section 11-a of the industrial disputes act, 1947. therefore, the learned single judge was not right in remanding the matter to the labour court with liberty to the labour court to consider the issue regarding the power under section 11-a of the act by eschewing the evidence said to have been recorded after preliminary finding.3. the learned counsel appearing for the first respondent was not in a position to dispute the said factual aspect, viz., examination of the management witness, viz., kumaravijayam alone, that too, for marking the statement regarding the past conduct of the workman alone and not on any other matter on merits. it is an admitted case that no witness on the part of the workman was examined after the finding was given on the preliminary issue.4. the case of the appellant before the labour court was that the enquiry finding given by enquiry officer in respect of two charges, viz., i) first charge memo dated 25.4.1995 alleging that on 13.4.1995, at 1.00 p.m. he attacked one mr.maran, an employee in the corporation ration shop and (ii) the second charge memo issued to the appellant on 16.6.1995 alleging that on 4.6.1995, the appellant attacked the security supervisor and also pelted stones against the security, are erroneous and the labour court after thoroughly gone into the documentary and oral evidence, came to the conclusion that the above two charges were not proved and passed an award, ordering reinstatement with 75% backwages.5. the learned counsel appearing for the appellant relied on the two decisions of the supreme court reported in air1973sc1227(workmen of m/s.firestone tyre and rubber co. of india p. ltd vs. management) and air1984sc1805(rajinder kumar kindra vs. delhi administration through secretary (labour) and others) to the proposition that the labour court can go into the issue regarding the proof of charges and come to a different conclusion than the one recorded by the enquiry officer.6. the learned counsel appearing for the management on the other hand submitted that the enquiry being fair and proper, the labour court ought not to have given a different conclusion in respect of two charges framed and the award of 75% of backwages to the workman in any event cannot be sustained, as there was no proof regarding the non-employment of the workman during the period in which he was kept out of employment.7. we have considered the rival submissions made by the learned counsel on either side.8. the point in issue is as to whether the learned single judge was justified in setting aside the award of the labour court ordering reinstatement with 75% backwages with continuity of service on the ground that after giving a finding regarding the preliminary issue with regard to the fairness of enquiry, whether the parties can be allowed to examine the witnesses and mark the documents thereafter. it is not in dispute that except the management witness viz., m.w.2-kumaravijayam for saying the past conduct of the workman, no other evidence, either on the side of the workman or on the side of management was let in. the examination of the said witness to mark the document was made on 23.5.2001 and the preliminary decision was rendered on 17.11.1999. the workman himself was examined as w.w.1 on 29.4.1998 and the management witness was examined as m.w.1 on 20.4.1999 and no other person, except the said kumaravijayam, was examined to record the past conduct of the workman to decide about the quantum of punishment imposed was justified or not, which power is available to labour court under section 11-a of the act in appropriate cases.9. in such view of the undisputed facts, the learned single judge was not right in setting aside the award of the labour court on the ground that the labour court permitted the workman as well as the management to adduce further evidence, after the finding was given on the preliminary issue. hence, the said decision rendered by the learned single judge cannot be sustained. insofar as the power of the labour court to go into the merits of the evidence of the parties, it is well settled in law that after the inception of section 11-a of the act. in the decision of the supreme court. in air1973sc1227(workmen of m/s.firestone tyre and rubber co. of india p. ltd vs. management), in paragraphs 36 and 37, it is held thus: ".36. therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under section 11a, about the guilt or otherwise of the workman concerned, is that of the tribunal. it has to consider the evidence and come to a conclusion one way or other. even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.37. we are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under section 11a by the tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. it has to be remembered that a tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. the tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. to come to a conclusion either way, the tribunal will have to reappraise the evidence for itself. ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. this is why, according to us, section 11a now gives full power to the tribunal to go into the evidence and satisfy itself on both these points. now the jurisdiction of the tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relied on the findings recorded by him in a domestic enquiry. such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. both categories are now put on a par by section 11a.". (emphasis supplied) 10. the said judgment is followed by the subsequent decision reported in air1984sc1805(rajinder kumar kindra vs. delhi administration through secretary (labour) and others) and in paragraph-16, it is held thus:- ".16. mr.jain contended that once mr.kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither high court under article 226 nor this court under article 136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence. we have not at all attempted to reappreciate the evidence though in exercise of the jurisdiction conferred by section 11a of the industrial disputes act, 1947 both arbitrator and this court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. it is too late in the day to contend that the arbitrator has only the power to decide whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not reappreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. this court in workmen of m/s.firestone tyre & rubber co. of india (p) ltd., v. management (1973) 3 scr587: (air1973sc1227, held that since the introduction of section 11a in the industrial disputes act, 1947, the industrial tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman. it is equally well settled that the arbitrator appointed under section 10-a is comprehended in section 11-a. this court in gujarat steel tubes ltd., vs. gujarat steel tubes mazdoor sabha (1980) 2 scr146: (air1980sc1896, held that an arbitrator appointed under section 10-a of the industrial disputes act, 1947 is comprehended in section 11-a and the arbitral reference apart from section 11-a is plenary in scope. therefore it would be within the jurisdiction both of the arbitrator as well as this court to reappreciate the evidence though it is not necessary to do so in this case. it is thus well settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under section 10-a or this court in appeal under article 136 can reject such findings as perverse. holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by section 11a to do so.". (emphasis supplied) 11. applying the said decisions to the facts of this case, the labour court was justified in analysing the evidence available on record to come to a conclusion than the one recorded by the enquiry officer and gave a finding regarding the two charges, which were held not proved by the labour court.12. the only issue now to be decided is regarding the payment of backwages from 25.3.1996 till the date of the award, viz., whether the petitioner is entitled to get backwages as a matter of right. it is an admitted position as on today that unless the workman proved positively that he was not otherwise employed during the period for which backwages is claimed, backwages cannot be ordered. the labour court without any positive evidence in this case has chosen to give 75% backwages while ordering reinstatement with continuity of service. the said portion of the award without any evidence insofar as awarding 75% backwages cannot therefore be sustained in terms of the decision of the supreme court reported in 2009 (3) scc124(novartis india limited vs. state of west bengal and others). in paragraph-21 of the said judgment, it is held thus:- ".21. there can, however, be no doubt whatsoever that there has been a shift in the approach of this court in regard to payment of back wages. back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. this court, in a number of decisions opined that grant of back wages is not automatic. the burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in section 106 of the evidence act, 1872. this court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with articles 14 and 16 of the constitution of india in cases of public employment, etc.".13. the learned counsel for the appellant submitted that the award of the labour court is dated 5.4.2002 and the writ petition was filed by the management in september, 2002 and the workman filed an application seeking last drawn wages under section 17-b of the industrial disputes act, 1947 substantially pleading that he was not otherwise employed and therefore he is not entitled to get the last drawn wages.14. the said statement was not opposed by the management and admittedly last drawn wages payable under section 17-b were paid to the workman during the pendency of the writ petition. thus, we are of the view that the interest of justice would be met by awarding full wages from the date of award i.e. on 5.4.2002 and the earlier period of reinstatement should be counted for all other service benefits, except for backwages, and the writ appeal is allowed in part. no costs. connected miscellaneous petition is closed.15. while calculating the backwages, the management is entitled to adjust the wages paid under section 17-b of the act during the pendency of the writ petition. reinstatement with continuity of service is directed to be made by the management within a period of four weeks from the date of receipt of a copy of this order and the arrears of salary, as ordered above is directed to be paid by the management within a period of eight weeks. index : yes (n.p.v., j.) (r.m.d.,j.) internet : yes 4th november, 2013. kb to 1. the management of metropolitan transport corporation ltd., (formerly known as pallavan transport corporation ltd.,) chennai  600 002.2. the presiding officer principal labour court chennai. n. paul vasanthakumar, j.and r.mahadevan, j.kb w.a.no.2078 of 2010 4.11.2013
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

04. 11.2013 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR AND THE HONOURABLE MR. JUSTICE R. MAHADEVAN WRIT APPEAL NO.2078 of 2010 and M.P.No.1 of 2010 K.Dharmaraj ... Appellant Vs.

1. The Management of Metropolitan Transport Corporation Ltd., (Formerly known as Pallavan Transport Corporation Ltd.,) Chennai  600 002.

2. The Presiding Officer Principal Labour Court Chennai. ... Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order made in W.P.No.37820 of 2002, dated 21.7.2010. For Appellant : Mr. K.M.Ramesh For Respondent No.1 : Mr.V.R.Kamalanathan JUDGMENT

(Judgment of the Court was delivered by N.Paul Vasanthakumar, J.) This writ appeal is filed against the order made in W.P.No.37820 of 2002, dated 21.7.2010, wherein the learned Single Judge set aside the award passed by the Labour Court made in I.D.No.624 of 1996, dated 5.4.2002 on the ground that the Labour Court had relied on fresh evidence, after giving a finding regarding the correctness of the enquiry, apart from the materials placed before the enquiry officer both by way of oral and documentary evidence, and remitted the matter to the Labour Court to consider the materials available on record for exercising the power under Section 11-A of the Industrial Disputes Act, 1947, by eschewing the evidence let in before the Labour Court in respect of the merits of the matter regarding the preliminary issue.

2. The learned counsel appearing for the appellant submitted that the fairness of the enquiry was questioned before the Labour Court as a preliminary issue and the workman himself was examined as W.W.1 on 29.4.1998 and the management witness, viz., Kalaimani was examined as M.W.1 on 20.4.1999 and the finding was given regarding the preliminary issue on 17.11.1999 regarding the fair and proper conduct of the enquiry and only on 23.5.2001, the management witness M.W.2-Kumaravijayam deposed regarding the past conduct, and his statement was marked to arrive at a conclusion by exercising the power under Section 11-A of the Industrial Disputes Act, 1947. Therefore, the learned Single Judge was not right in remanding the matter to the Labour Court with liberty to the Labour Court to consider the issue regarding the power under Section 11-A of the Act by eschewing the evidence said to have been recorded after preliminary finding.

3. The learned counsel appearing for the first respondent was not in a position to dispute the said factual aspect, viz., examination of the management witness, viz., Kumaravijayam alone, that too, for marking the statement regarding the past conduct of the workman alone and not on any other matter on merits. It is an admitted case that no witness on the part of the workman was examined after the finding was given on the preliminary issue.

4. The case of the appellant before the Labour Court was that the enquiry finding given by Enquiry Officer in respect of two charges, viz., i) first charge memo dated 25.4.1995 alleging that on 13.4.1995, at 1.00 p.m. he attacked one Mr.Maran, an employee in the Corporation Ration shop and (ii) the second charge memo issued to the appellant on 16.6.1995 alleging that on 4.6.1995, the appellant attacked the Security Supervisor and also pelted stones against the security, are erroneous and the Labour Court after thoroughly gone into the documentary and oral evidence, came to the conclusion that the above two charges were not proved and passed an award, ordering reinstatement with 75% backwages.

5. The learned counsel appearing for the appellant relied on the two decisions of the Supreme Court reported in AIR1973SC1227(Workmen of M/s.Firestone Tyre and Rubber Co. of India P. Ltd Vs. Management) and AIR1984SC1805(Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others) to the proposition that the Labour Court can go into the issue regarding the proof of charges and come to a different conclusion than the one recorded by the Enquiry Officer.

6. The learned counsel appearing for the management on the other hand submitted that the enquiry being fair and proper, the Labour Court ought not to have given a different conclusion in respect of two charges framed and the award of 75% of backwages to the workman in any event cannot be sustained, as there was no proof regarding the non-employment of the workman during the period in which he was kept out of employment.

7. We have considered the rival submissions made by the learned counsel on either side.

8. The point in issue is as to whether the learned Single Judge was justified in setting aside the award of the Labour Court ordering reinstatement with 75% backwages with continuity of service on the ground that after giving a finding regarding the preliminary issue with regard to the fairness of enquiry, whether the parties can be allowed to examine the witnesses and mark the documents thereafter. It is not in dispute that except the management witness viz., M.W.2-Kumaravijayam for saying the past conduct of the workman, no other evidence, either on the side of the workman or on the side of management was let in. The examination of the said witness to mark the document was made on 23.5.2001 and the preliminary decision was rendered on 17.11.1999. The workman himself was examined as W.W.1 on 29.4.1998 and the management witness was examined as M.W.1 on 20.4.1999 and no other person, except the said Kumaravijayam, was examined to record the past conduct of the workman to decide about the quantum of punishment imposed was justified or not, which power is available to Labour Court under Section 11-A of the Act in appropriate cases.

9. In such view of the undisputed facts, the learned Single Judge was not right in setting aside the award of the Labour Court on the ground that the Labour Court permitted the workman as well as the management to adduce further evidence, after the finding was given on the preliminary issue. Hence, the said decision rendered by the learned Single Judge cannot be sustained. Insofar as the power of the Labour Court to go into the merits of the evidence of the parties, it is well settled in law that after the inception of Section 11-A of the Act. In the decision of the Supreme Court. in AIR1973SC1227(Workmen of M/s.Firestone Tyre and Rubber Co. of India P. Ltd Vs. Management), in paragraphs 36 and 37, it is held thus: ".

36. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.

37. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. This is why, according to us, section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relied on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A.". (Emphasis supplied) 10. The said judgment is followed by the subsequent decision reported in AIR1984SC1805(Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others) and in paragraph-16, it is held thus:- ".

16. Mr.Jain contended that once Mr.Kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under Article 226 nor this Court under Article 136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence. We have not at all attempted to reappreciate the evidence though in exercise of the jurisdiction conferred by Section 11A of the Industrial Disputes Act, 1947 both arbitrator and this Court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. It is too late in the day to contend that the arbitrator has only the power to decide whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not reappreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. This Court in Workmen of M/s.Firestone Tyre & Rubber Co. of India (P) Ltd., v. Management (1973) 3 SCR587: (AIR1973SC1227, held that since the introduction of Section 11A in the Industrial Disputes Act, 1947, the Industrial Tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman. It is equally well settled that the arbitrator appointed under Section 10-A is comprehended in Section 11-A. This Court in Gujarat Steel Tubes Ltd., vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCR146: (AIR1980SC1896, held that an arbitrator appointed under Section 10-A of the Industrial Disputes Act, 1947 is comprehended in Section 11-A and the arbitral reference apart from Section 11-A is plenary in scope. Therefore it would be within the jurisdiction both of the arbitrator as well as this Court to reappreciate the evidence though it is not necessary to do so in this case. It is thus well settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under Section 10-A or this Court in appeal under Article 136 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by Section 11A to do so.". (Emphasis supplied) 11. Applying the said decisions to the facts of this case, the Labour Court was justified in analysing the evidence available on record to come to a conclusion than the one recorded by the Enquiry Officer and gave a finding regarding the two charges, which were held not proved by the Labour Court.

12. The only issue now to be decided is regarding the payment of backwages from 25.3.1996 till the date of the award, viz., whether the petitioner is entitled to get backwages as a matter of right. It is an admitted position as on today that unless the workman proved positively that he was not otherwise employed during the period for which backwages is claimed, backwages cannot be ordered. The Labour Court without any positive evidence in this case has chosen to give 75% backwages while ordering reinstatement with continuity of service. The said portion of the award without any evidence insofar as awarding 75% backwages cannot therefore be sustained in terms of the decision of the Supreme Court reported in 2009 (3) SCC124(Novartis India Limited Vs. State of West Bengal and Others). In paragraph-21 of the said judgment, it is held thus:- ".

21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment, etc.".

13. The learned counsel for the appellant submitted that the award of the Labour Court is dated 5.4.2002 and the writ petition was filed by the management in September, 2002 and the workman filed an application seeking last drawn wages under Section 17-B of the Industrial Disputes Act, 1947 substantially pleading that he was not otherwise employed and therefore he is not entitled to get the last drawn wages.

14. The said statement was not opposed by the management and admittedly last drawn wages payable under Section 17-B were paid to the workman during the pendency of the writ petition. Thus, we are of the view that the interest of justice would be met by awarding full wages from the date of award i.e. on 5.4.2002 and the earlier period of reinstatement should be counted for all other service benefits, except for backwages, and the writ appeal is allowed in part. No costs. Connected miscellaneous petition is closed.

15. While calculating the backwages, the management is entitled to adjust the wages paid under Section 17-B of the Act during the pendency of the writ petition. Reinstatement with continuity of service is directed to be made by the management within a period of four weeks from the date of receipt of a copy of this order and the arrears of salary, as ordered above is directed to be paid by the management within a period of eight weeks. Index : Yes (N.P.V., J.) (R.M.D.,J.) Internet : Yes 4th November, 2013. kb To 1. The Management of Metropolitan Transport Corporation Ltd., (Formerly known as Pallavan Transport Corporation Ltd.,) Chennai  600 002.

2. The Presiding Officer Principal Labour Court Chennai. N. PAUL VASANTHAKUMAR, J.

AND R.MAHADEVAN, J.

Kb W.A.No.2078 of 2010 4.11.2013