Decided on February 11,1970



- (1.) THE dismissal of five workmen and the suspension of another ten workmen employed in the Ennore Foundries Ltd, Ennore. gave rise to an industrial dispute, which was referred to the adjudication of the Labour Court, Madras, by the Government in G. O. R. No. 749, Industries, Labour and Housing dated April 25, 1967. The dispute with reference to the suspension of the ten workmen, after the filing of the claim and counter, was settled out of court and a joint memorandum to that effect was filed before the Labour Court on December 6, 1967. Consequently, the Labour Court had to deal with the reference relating to the dismissal of five workmen, namely, P. A. Verghese, P. S. Mani, A. Doss, Mohanram and Devasahayam. By an award made by the Labour Court on June 14, 1968, it came to the conclusion that the circumstances indicated that the dismissal of Verghese was more a case of victimisation than a case of trying to enforce discipline in the interests of the industry. It was also of the view that normally he should be reinstated, though perhaps without any back wages, because there was some misconduct at least; but in the circumstances of the case, reinstatement would not be beneficial either to the workmen or to the management and, therefore, in the opinion of the Labour Court, a liberal compensation of 15 months' salary inclusive of dearness allowance and, other allowances would be sufficient compensation for the four years service of Verghese, besides any gratuity that may be due to him in law. With regard to Mani, Doss and Mohanram, the Labour Court came to the conclusion that their dismissal did not seem to be just or proper. Here again, instead of directing reinstatement of the workmen, the Labour Court stated that payment of 20 months' salary for each of the three workmen, inclusive of dearness allowance and other allowances, by way of compensation would meet the ends of justice since they had each put in five years of service. With regard to Devasahayam, the Labour Court recorded: In the circumstances I feel that no injustice has been done and that after a proper enquiry and a just finding that he had misconducted himself he was properly punished. An argument that was advanced before the Labour Court was that the charge memos as well as the orders of dismissal in respect of the five workers were not issued or signed by the proper authority and therefore from that point of view also, the orders of dismissal were illegal. The Labourt Court was of the view that it was unnecessary to discuss this aspect in greater detail, as it had given a finding on other aspects and passed final orders. Against this award of the Labour Court, the workmen have filed W. P. No. 3771 of 1968 challenging the award in so far as the Labour Court, instead of reinstating Verghese, Mani, Doss, and Mohanram, had directed payment of compensation only and in so far as it had held that the dismissal of Devasahayam was justified. As against this, the management has filed W. P. No. 1526 of J969 contending that the finding and the conclusion of the Labour Court that Verghese was dismissed more by way of victimisation than by way of maintenance of discipline was erroneous and equally the finding of the Labour Court that the dismissal of Mani, Doss and Mohanram did not seem to be just and proper and was illegal.
(2.) IN support of the respective contentions of the parties a large number of decisions were cited before me and each wanted me to hold that the award of the Labour Court to the extent to which it adversely affected the case of the respective parties is illegal and is liable to be set aside. In view of the conclusion I have come to and the order I propose to pass, it may not be necessary to go into all the details except to indicate the legal position which the Labour Court had failed to bear in mind, when passing the award in question. 1 propose to quash the award of the Labour Court except to a limited extent and remand the matter to the Labour Court for fresh disposal for the reason that the Labour Court had not borne in mind the extent of its jurisdiction, as settled by the various decisions of the Supreme Court in relation to a domestic enquiry conducted by a management against its workmen and the order of punishment passed by the said management, based upon such an enquiry conducted into the charges levelled against a workman.
(3.) BEFORE I refer to the legal position in this behalf, it is necessary to refer to what exactly the Labour Court had held in respect of each of these workmen. As far as Verghese is concerned, he was dismissed from service on a charge of persistent absence without leave. The enquiry officer found that out of a total number of 206 days, he was absent for 37 days and out of these 37 days, he was absent without leave unauthorisedly for 26- days. According to standing order No. 17 (2) (f) of the standing orders of the management, persistent absence without leave will amount to a major misconduct. Standing Order No. 2 (d) defines the word, "persistent" as meaning "an act of omission repeated a minimum of three times within a period of twelve months". The Labour Court in its award points out that though the enquiry officer found that Verghese was absent without leave for 26- days, before it the management confined itself only to eight specified days. Further, the Labour Court records that it had been proved that on five occasions without first applying for leave and getting it sanctioned, Verghese stopped away. Having stated so, the Labour Court refers to certain facts and contentions of the parties and ultimately records: On the 25th when the enquiry was held he repeatedly requested for an adjournment but this was refused. This is very unjust to say the least. Further in the circumstances of this case when he was charged with having absented himself without leave for several days and when the enquiry officer gave a finding that he was absent for 26- days unauthorisedly and when at the hearing before me they could not prove it for more than five days, all these circumstances indicate that it was more a case of victimisation than a case of trying to enforce discipline in the interests of industry. In an earlier part of the award, the Labour Court records: It has been proved that on live occasions without first applying for leave and getting it sanctioned he stopped away. It is now on the evidence before me proved that he has to that extent misconducted himself. No doubt as contended on behalf of the management when misconduct is proved, one cannot take into consideration as to whether it will amount to victimisation also or not. Thus, it will be seen that it is difficult to understand that exactly it was that weighed with the Labour Court, when it came to the conclusion referred to above. Was it the view of the Labour Court that the domestic enquiry was vitiated to any extent and therefore it had the right to ignore the domestic enquiry and on the basis of the materials placed before it, to come to a conclusion whether Verghese was guilty of misconduct or not? Was it the view of the Labour Court that since misconduct to the extent of Verghese absenting himself without leave had been established, the management was entitled to dismiss him from service and the question of victimisation did not come into the picture at all? Or was it the view of the Labour Court that this was a case of victimisation which enabled it to interfere with the matter? From what I have stated above, the position is not at all clear from the award of the Labour Court.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.