R. Kannabiran Vs. the Deputy Commissioner of Labour, (Appellate Authority), Tiruchirapalli and the Special Officer, Trichy Co-operative Wholesale Stores Limited, Trichy - Court Judgment

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labour and industrial - dismissal - section 11a of industrial disputes act and tamil nadu shops and establishments act, 1947 - aggrieved by order of dismissal petition filed to quash same as illegal - several charges levelled against petitioner - petitioner found guilty of charges including threatening, abusing and preventing high officials of respondent - under such circumstances punishment of removal not disproportionate - decision based on material facts - no error or infirmity in impugned order of removal thus petition dismissed. - orderp. sathasivam, j. 1. aggrieved by the order of the deputy commissioner of labour (appellate authority, tiruchirapalli)-first respondent in tnsc appeal case 8/81 dated 27-6-95 confirming the order of the second respondent removing the petitioner from service, the petitioner has filed the above writ petition to quash the same as illegal, incompetent and unconstitutional.2. the case of the petitioner is briefly stated hereunder: the petitioner was employed as a clerk in the second respondent society and he joined service on 21-9-72. one balaraman, sales manager has falsely implicated the petitioner as if he refused to receive the tapal and thus, amounting to dereliction of duty. it was also their case that on 8-1-79 he shouted at the superior officer on being suspended from service. a charge memo was given on 21-1-79, for which he replied on 29-1-79. an enquiry was conducted and ultimately the enquiry officer had submitted a report holding that the petitioner is guilty of all the charges. before the enquiry officer since the persons concerned with the incident were not examined, he did not cross-examine the witnesses examined on the side of the management except m.w.2. based on the report of the enquiry officer, the second respondent dismissed him from service. against the said order, he preferred an appeal to the first respondent. the first respondent had held that in the absence of cross-examination of m.w.3 to m.w.5 the charges were found proved. the entire procedure and the conclusion arrived by the appellate authority cannot be sustained. it is further stated that without discussing the materials placed, the appellate authority merely confirmed the order of the second respondent; hence the present writ petition. 3. heard the learned counsel for the petitioner as well as second respondent.4. mr. v. raghachari, learned counsel for the petitioner, after taking me through the charge memo, the enquiry proceedings and the order of the appellate authority-first respondent herein, has raised the following contentions:(i) the first respondent, being an appellate authority, instead of discussing the materials placed before the enquiry officer, merely confirmed the finding and committed an error; (ii) the management failed to substantiate the charges levelled against the petitioner; and (iii) in any event, the punishment of dismissal is disproportionate to the proved charges. on the other hand, learned counsel appearing for the second respondent, would contend that considering the gravity of the proved charges and of the materials and in the light of the fact that petitioner was given adequate opportunity to put-forth his case before the enquiry officer, in the absence of cross-examining the management witnesses, except m.w.2, the appellate authority is fully justified in confirming the order of dismissal. he also submitted that the punishment of dismissal is warranted and interference by this court exercising jurisdiction under article 226 of the constitution of india is limited; accordingly prayed for dismissal of the writ petition. 5. i have carefully considered the rival submissions. 6. in order to appreciate the rival contentions, it is useful to refer the charges framed against the petitioner. they are: 'charge: 1. that he misbehaved with his superior officers with an intention to assault and annoy them and abused in vulgar obscene and filthy language and used disrespectful words about the superiors in the presence of others while they were discharging their official duties, intimidated them and thereby deterring them from discharging their official duties and also induced other employees by attempting to violence and act against the higher officers of the stores. 2. that he refused to receive office tapals and thereby disobeyed office instructions. 3. that he failed in his official duties.' with reference to those charges, in the light of the fact that the explanation offered by the petitioner was not acceptable, the management appointed an enquiry officer. it is not disputed that petitioner was given opportunity before the enquiry officer to put-forth his case. though this court cannot go into the evidence let in before the enquiry officer, in the light of the elaborate submissions made by both sides, i have verified the statement made by the witnesses on the side of the management. apart from the relevant materials placed before the enquiry officer, before the appellate authority, the petitioner himself was examined as p.w.1. on the other hand, no one was examined on the side of the stores, however exs. r-1 to r-14 were marked in support of their defence. it is seen from the order of the appellate authority that he has gone through the entire proceedings. the charge no.1 against the petitioner relates to misbehaviour with his superior officer with an intention to assault and abuse in vulgar and filthy language. with reference to the said charge, the sales-manager of the stores had submitted an office note to the special officer of the incident occurred on 1-1-79. he deposed before the enquiry officer as m.w.2. he narrated and described the incident and the abusive language uttered by the petitioner. though it is stated that the petitioner was merely accompanied one govindarajan, a perusal of the evidence of m.w.2 shows that it was he who uttered filthy language. the evidence of m.w.2 and the documents marked through him were considered by the first respondent. apart from the evidence of m.w.2, the other witness, namely, krishnaswamy, mw3, also supported the evidence of mw2. it is further seen from the records that both of them were examined in the presence of the petitioner. it is also seen that ins spite of giving an opportunity, it is not clear as to why the petitioner has not come forward to cross-examine the said witnesses and in such a circumstance, in the absence of any contra evidence, after analyzing the same, the appellate authority accepted their stand. apart from the evidence of m.w.2 and m.w.3, the management has examined two other witnesses as m.w.4 and m.w.5, who were also very well present at the time of the incident. though the learned counsel for the petitioner has contended that since except m.w.2, others were unconnected with the charges levelled against him, the petitioner did not cross-examine them, as stated earlier, after going through their statement before the enquiry officer, i am unable to accept the said contention. when the petitioner was given opportunity to cross-examine the witnesses examined on the side of the management, it is but proper for him (petitioner) to utilize the opportunity and get answers from them. likewise, when he was asked to examine witnesses on his side, he bluntly refused 'no'. in such a circumstance, in so far as charge no.1 is concerned, i am in agreement with the conclusion arrived at by the appellate authority and the argument of the learned counsel for the petitioner is liable to be dismissed. 7. regarding the second charge, though it is stated that the only document which the petitioner refused to receive relates to the issue in question, here again, the perusal of the materials placed would show that he not only refused to accept the order of suspension, but also refused to hand over tapal to another officer. here again, the administrative manager of the stores had deposed before the enquiry officer. the petitioner did not cross-examine him nor examined any one in support of his claim. in such a circumstance, the appellate authority is perfectly right in holding that charge no.2 was also proved with acceptable evidence. 8. coming to the other charge, it is seen that the processing of the transfer bill dated 11-11-70, was not done by the petitioner till 8-1-79. here again, the petitioner himself had accepted that there was delay in the preparation of certain transfer bills due to heavy work. accordingly, i am in agreement with the conclusion arrived by the appellate authority regarding charge no.3.9. learned counsel appearing for the petitioner pointed out that punishment of dismissal is harsh and the appellate authority failed to take note of the consequences thereof. in support of his said contention, he relied on decisions in (1) tafe, ltd., v. r. vinkatraman 1989 l.l.n. 710; (2) c.v. kotecha v. halar salt and chemical works 1986 l.i.c.938; (3) rama kant misra v. state of u.p ; and (4) vasanti v. a.i.h.f.m. cooperative society limited, ahmadabad 1985 l i.c. 1104. in the light of the submission made, i have carefully perused all the above decisions. all these decisions relate to power of the labour court/industrial tribunal under section 11a of the industrial disputes act. there is no dispute that under section 11a, the labour court/industrial tribunal is empowered to impose lesser punishment in lieu of discharge or dismissal depending on the circumstance of the case. admittedly, the first respondent has to consider whether the order of dismissal imposed on the petitioner is sustainable or not. there is no such provision in the tamil nadu shops and establishments act, 1947 corresponding to section 11a of the industrial disputes act. even otherwise, in the light of the fact that all the 3 charges were found proved and the same were discussed by the appellate authority and it arrived a conclusion that petitioner was guilty of threatening, abusing, intimidating, and preventing high officials of the stores, i am of the view that the punishment of dismissal would appropriate and the same has been rightly confirmed by the appellate authority. in this regard, learned counsel appearing for the second respondent very much relied on a decision of the apex court in indian overseas bank v. i.o.b. staff canteen workers' union, reported in air 2000 s.c. 1508. regarding interference of this court under article 226 of the constitution of india, the following observation of their lordships is pressed into service: (para 19)'19. the learned single judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a tribunal, presided over by a judicial officer. the findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly one taken....'the said decision has been followed by the division bench of this court (p. sathasivam and k. gnanaprakasam, jj) in i.a.c. workers' union v. i.a. authority of india 2001 (4) l.l.n. 909. i have already referred to the charges levelled against the petitioner and the petitioner was found guilty of all the charges which include threatening, abusing, intimidating and preventing high officials of the respondent stores. in this regard, it is relevant to refer a decision of the supreme court in utter pradesh state road transport corporation v. subhash chandra sharma 2000 (2) l.l.n. 402 wherein it was held that even a threatening to assault the co-employee amounts a serious misconduct and a punishment of removal was therefore held not disproportionate. 10. in the light of what is stated above, i do not find any error or infirmity in the impugned order of the first respondent; consequently the writ petition fails and the same is dismissed. no costs. wmp no.24423/95 is closed.

Judgment:
ORDER

P. Sathasivam, J.

1. Aggrieved by the order of the Deputy Commissioner of Labour (Appellate Authority, Tiruchirapalli)-first respondent in TNSC Appeal Case 8/81 dated 27-6-95 confirming the order of the second respondent removing the petitioner from service, the petitioner has filed the above writ petition to quash the same as illegal, incompetent and unconstitutional.

2. The case of the petitioner is briefly stated hereunder: The petitioner was employed as a clerk in the second respondent Society and he joined service on 21-9-72. One Balaraman, Sales Manager has falsely implicated the petitioner as if he refused to receive the tapal and thus, amounting to dereliction of duty. It was also their case that on 8-1-79 he shouted at the superior officer on being suspended from service. A Charge Memo was given on 21-1-79, for which he replied on 29-1-79. An enquiry was conducted and ultimately the enquiry officer had submitted a report holding that the petitioner is guilty of all the charges. Before the Enquiry Officer since the persons concerned with the incident were not examined, he did not cross-examine the witnesses examined on the side of the Management except M.W.2. Based on the report of the Enquiry Officer, the second respondent dismissed him from service. Against the said order, he preferred an appeal to the first respondent. The first respondent had held that in the absence of cross-examination of M.W.3 to M.W.5 the charges were found proved. The entire procedure and the conclusion arrived by the appellate authority cannot be sustained. It is further stated that without discussing the materials placed, the appellate authority merely confirmed the order of the second respondent; hence the present writ petition.

3. Heard the learned counsel for the petitioner as well as second respondent.

4. Mr. V. Raghachari, learned counsel for the petitioner, after taking me through the charge memo, the enquiry proceedings and the order of the appellate authority-first respondent herein, has raised the following contentions:

(i) The first respondent, being an appellate authority, instead of discussing the materials placed before the enquiry officer, merely confirmed the finding and committed an error;

(ii) The Management failed to substantiate the charges levelled against the petitioner; and

(iii) In any event, the punishment of dismissal is disproportionate to the proved charges.

On the other hand, learned counsel appearing for the second respondent, would contend that considering the gravity of the proved charges and of the materials and in the light of the fact that petitioner was given adequate opportunity to put-forth his case before the enquiry officer, in the absence of cross-examining the management witnesses, except M.W.2, the appellate authority is fully justified in confirming the order of dismissal. He also submitted that the punishment of dismissal is warranted and interference by this Court exercising jurisdiction under Article 226 of the Constitution of India is limited; accordingly prayed for dismissal of the writ petition.

5. I have carefully considered the rival submissions.

6. In order to appreciate the rival contentions, it is useful to refer the charges framed against the petitioner. They are:

'Charge:

1. That he misbehaved with his superior officers with an intention to assault and annoy them and abused in vulgar obscene and filthy language and used disrespectful words about the superiors in the presence of others while they were discharging their official duties, intimidated them and thereby deterring them from discharging their official duties and also induced other employees by attempting to violence and act against the higher officers of the stores.

2. that he refused to receive office tapals and thereby disobeyed office instructions.

3. that he failed in his official duties.'

With reference to those charges, in the light of the fact that the explanation offered by the petitioner was not acceptable, the Management appointed an Enquiry Officer. It is not disputed that petitioner was given opportunity before the enquiry officer to put-forth his case. Though this Court cannot go into the evidence let in before the enquiry officer, in the light of the elaborate submissions made by both sides, I have verified the statement made by the witnesses on the side of the Management. Apart from the relevant materials placed before the enquiry officer, before the appellate authority, the petitioner himself was examined as P.W.1. On the other hand, no one was examined on the side of the Stores, however Exs. R-1 to R-14 were marked in support of their defence. It is seen from the order of the appellate authority that he has gone through the entire proceedings. The charge No.1 against the petitioner relates to misbehaviour with his superior officer with an intention to assault and abuse in vulgar and filthy language. With reference to the said charge, the Sales-Manager of the Stores had submitted an Office Note to the Special Officer of the incident occurred on 1-1-79. He deposed before the enquiry officer as M.W.2. He narrated and described the incident and the abusive language uttered by the petitioner. Though it is stated that the petitioner was merely accompanied one Govindarajan, a perusal of the evidence of M.W.2 shows that it was he who uttered filthy language. The evidence of M.W.2 and the documents marked through him were considered by the first respondent. Apart from the evidence of M.W.2, the other witness, namely, Krishnaswamy, MW3, also supported the evidence of MW2. It is further seen from the records that both of them were examined in the presence of the petitioner. It is also seen that ins spite of giving an opportunity, it is not clear as to why the petitioner has not come forward to cross-examine the said witnesses and in such a circumstance, in the absence of any contra evidence, after analyzing the same, the appellate authority accepted their stand. Apart from the evidence of M.W.2 and M.W.3, the Management has examined two other witnesses as M.W.4 and M.W.5, who were also very well present at the time of the incident. Though the learned counsel for the petitioner has contended that since except M.W.2, others were unconnected with the charges levelled against him, the petitioner did not cross-examine them, as stated earlier, after going through their statement before the enquiry officer, I am unable to accept the said contention. When the petitioner was given opportunity to cross-examine the witnesses examined on the side of the Management, it is but proper for him (petitioner) to utilize the opportunity and get answers from them. Likewise, when he was asked to examine witnesses on his side, he bluntly refused 'No'. In such a circumstance, in so far as Charge No.1 is concerned, I am in agreement with the conclusion arrived at by the appellate authority and the argument of the learned counsel for the petitioner is liable to be dismissed.

7. Regarding the second charge, though it is stated that the only document which the petitioner refused to receive relates to the issue in question, here again, the perusal of the materials placed would show that he not only refused to accept the order of suspension, but also refused to hand over tapal to another officer. Here again, the administrative Manager of the Stores had deposed before the enquiry officer. The petitioner did not cross-examine him nor examined any one in support of his claim. In such a circumstance, the appellate authority is perfectly right in holding that Charge No.2 was also proved with acceptable evidence.

8. Coming to the other charge, it is seen that the processing of the Transfer Bill dated 11-11-70, was not done by the petitioner till 8-1-79. Here again, the petitioner himself had accepted that there was delay in the preparation of certain transfer bills due to heavy work. Accordingly, I am in agreement with the conclusion arrived by the appellate authority regarding Charge No.3.

9. Learned counsel appearing for the petitioner pointed out that punishment of dismissal is harsh and the appellate authority failed to take note of the consequences thereof. In support of his said contention, he relied on decisions in (1) TAFE, Ltd., v. R. Vinkatraman 1989 L.L.N. 710; (2) C.V. Kotecha v. Halar Salt and Chemical Works 1986 L.I.C.938; (3) Rama Kant Misra v. State of U.P ; and (4) Vasanti v. A.I.H.F.M. Cooperative Society Limited, Ahmadabad 1985 L I.C. 1104. In the light of the submission made, I have carefully perused all the above decisions. All these decisions relate to power of the Labour Court/Industrial Tribunal under section 11A of the Industrial Disputes Act. There is no dispute that under section 11A, the Labour Court/Industrial Tribunal is empowered to impose lesser punishment in lieu of discharge or dismissal depending on the circumstance of the case. Admittedly, the first respondent has to consider whether the order of dismissal imposed on the petitioner is sustainable or not. There is no such provision in the Tamil Nadu Shops and Establishments Act, 1947 corresponding to section 11A of the Industrial Disputes Act. Even otherwise, in the light of the fact that all the 3 charges were found proved and the same were discussed by the appellate authority and it arrived a conclusion that petitioner was guilty of threatening, abusing, intimidating, and preventing high officials of the Stores, I am of the view that the punishment of dismissal would appropriate and the same has been rightly confirmed by the appellate authority. In this regard, learned counsel appearing for the second respondent very much relied on a decision of the Apex Court in Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union, reported in AIR 2000 S.C. 1508. Regarding interference of this Court under Article 226 of the Constitution of India, the following observation of Their Lordships is pressed into service: (para 19)

'19. The learned single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly one taken....'

The said decision has been followed by the Division Bench of this Court (P. Sathasivam and K. Gnanaprakasam, JJ) in I.A.C. Workers' Union v. I.A. Authority of India 2001 (4) L.L.N. 909. I have already referred to the charges levelled against the petitioner and the petitioner was found guilty of all the charges which include threatening, abusing, intimidating and preventing high officials of the respondent Stores. In this regard, it is relevant to refer a decision of the Supreme Court in Utter Pradesh State Road Transport Corporation v. Subhash Chandra Sharma 2000 (2) L.L.N. 402 wherein it was held that even a threatening to assault the co-employee amounts a serious misconduct and a punishment of removal was therefore held not disproportionate.

10. In the light of what is stated above, I do not find any error or infirmity in the impugned order of the first respondent; consequently the Writ Petition fails and the same is dismissed. No costs. WMP No.24423/95 is closed.