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Judgment
M. Jaichandren, J.—Heard the learned Counsel appearing for the petitioner and the learned Counsel appearing for the second respondent.
This writ petition has been filed by the petitioner to set aside the award, dated September 18, 2000, passed by the first respondent Labour
Court, in I.D. No. 96/1998.
It has been stated that the petitioner Co-operative stores has been established with the object of serving the employees of Hindustan Photo
Films. The second respondent was working in the petitioner company from the month of December, 1989, on daily wages. From the month of
April, 1992, he has been paid a consolidated sum of Rs. 750./- per month. After the newly elected office bearers took charge of the administration
of the petitioner stores they had taken several measures, including certain measures to curb absenteeism amongst the employees of the stores.
Therefore, several initiatives and decisions were taken by new office bearers of the petitioner stores. Taking into account the second respondent''s
experience and expertise the newly elected office bearers had decided to entrust the job of ''salesman'' in the provision Section to the second
respondent. Accordingly, a resolution was passed in a meeting convened by the executive committee of the Society, on April 30, 1997, wherein it
was resolved that the second respondent would do the work of salesman in the provision Section. Accordingly, the second respondent was
informed of the decision, on May 2, 1997. However, the second respondent had refused to carry out the instructions of the superiors to do the
work of a salesman. When the vice-president of the petitioner Stores had issued directions to the second respondent, he had not only refused to
obey the directions, but had also abused him using vulgar and filthy language. Considering the gravity of the misconduct committed by the second
respondent the petitioner had summarily dismissed the second respondent from service, on May 7, 1997, and it was communicated to the second
respondent, on May 12, 1997. Based on the said order of dismissal, dated May 7, 1997, the petitioner had raised an industrial dispute before the
Labour Officer, Coimbatore. Since the conciliation proceedings had ended in failure, the Labour officer concerned had submitted a failure report.
Thereafter, the second respondent had raised an industrial dispute before the first respondent labour Court, in I.D. No. 96/1998. Since the
petitioner had not conducted an enquiry into the charges levelled against the second respondent, four witnesses were examined on behalf of the
petitioner and they were duly cross examined by the second respondent. Thereafter, the second respondent had examined himself as a witness
before the first respondent Labour Court and the second respondent was duly cross examined by the petitioner. After hearing the arguments, the
first respondent Labour Court had passed an award, on September 18, 2000, directing the petitioner to reinstate the second respondent in service,
with back wages and other attendant benefits, on the ground that the board''s resolution calling upon the second respondent to work as a salesman
was not filed in Court. It was further held that the allegation against the second respondent that he had used filthy language was not mentioned in
the dismissal order issued to the second respondent. Aggrieved by the award, dated September 18, 2000, passed by the first respondent labour
Court, in I.D. No. 96/1998, the petitioner stores has preferred the present writ petition before this Court, under Article 226 of the Constitution of
India.
The learned Counsel appearing on behalf of the petitioner Stores had submitted that the award passed by the first respondent Labour Court
suffers from error apparent on the face of the record and therefore, it is liable to be set aside. The first respondent Labour Court had erred in
disbelieving the case of the petitioner that the second respondent had failed to obey the lawful orders of the officers of the petitioner stores
according to which the second respondent was called upon to work as a salesman. The first respondent Labour Court had found that the Board
resolution evidencing the decision taken by the executive committee to allot the work of salesman to the second respondent had not been filed as
an exhibit before the Labour Court. The said finding of the first respondent Labour Court is patently erroneous and against the pleadings of the
parties. Admittedly, the second respondent imself, right from the day he was terminated from services had alleged that he was called upon to work
as a salesman and according to him the said job involved more responsibilities which he was not qualified to perform. Thus, when there was no
dispute with regard to the fact that the second respondent was called upon to do the work of a salesman and that he had failed to obey the said
order, the non-production of the Board resolution would be insignificant. The first respondent Labour Court had proceeded on the basis that even
though the said fact has been admitted by the parties concerned, yet it has to be proved by sufficient documentary evidence. The approach of the
first respondent Labour Court cannot be held to be proper, as it is contrary to the established legal principles relating to the law of evidence. The
first respondent Labour Court ought to have seen that by calling upon the second respondent to work as a salesman, he was in fact given a higher
responsibility, keeping in view his experience and the expertise he had possessed and that it was not with any mala fide intentions.
In fact, the second respondent himself did not allege any mala fides against the petitioner. No prejudice had been proved by the second
respondent due to the order passed by the officers of the petitioner stores. Since the second respondent had disobeyed the order passed by the
officers of the petitioner stores he was rightly dismissed from service. The first respondent Labour Court had erred in coming to the conclusion that
though the charge against the second respondent that he had used abusive and filthy language had been proved it cannot be held against him since it
does not find a place in the dismissal order. The first respondent ought to have seen that the petitioner had very clearly set out the facts and
circumstances of the case leading to the order of dismissal issued against the second respondent. No rejoinder has been filed by the second
respondent to the counter statement filed before the first respondent Labour Court denying his abusive and filthy language. Further, the
management witnesses examined before the Labour Court have categorically stated that the second respondent, on May 2, 1997, when he was
called upon to do the work of a salesman, refused to do the same and he had also abused the Vice President of the society in front of the
cooperative Sub-Registrar and the other members of the society.
The first respondent Labour Court had erred in coming to the conclusion that since no written order was given to the second respondent to
work as a salesman, the petitioner Stores cannot take any disciplinary action against the second respondent for his failure to carry out the duties of
a salesman. The first respondent Labour Court ought to have seen that the purpose of giving the order in writing to a person concerned is only to
put him on notice. In the present case the second respondent was put on notice stating that he had to do the duties of a salesman, which fact has
been admitted by the second respondent. In such a situation, the non issuing of a written order is insignificant. When the parties to a contract are
aware of the obligations arising out of the contract, whether it is oral or in writing, any deviation therefrom would entail penal action for the breach
of the contract. The first respondent Labour Court had erred in coming to the conclusion that since no charges were framed or an enquiry
conducted against the second respondent, in respect of the charges levelled against him the claims made by the petitioner cannot be believed or
accepted. Such a view taken by the first respondent Labour Court cannot be sustained.
The Labour Court ought to have seen that the law permits the petitioner to let in evidence and to prove the charges before the Labour Court,
even if no domestic enquiry had been held by the management prior to the order of dismissal. The first respondent Labour Court had also erred in
coming to the conclusion that only after the receipt of the letter, dated May 3, 1997, sent by the second respondent, the petitioner had thought of
terminating the second respondent. Once it is clear that the second respondent was dismissed from service for the misconducts committed by him,
the question of attributing motives in such a case does not arise. The Labour Court, without appreciating the fact that the second respondent
employee had not accepted the advise of the Labour Officer, during the enquiry proceedings, to accept the offer of the petitioner management for
re-employment, had mechanically, without applying its mind, had passed the impugned award, dated September 18, 2000, in I.D. No. 96/1998,
reinstating the second respondent in service, with back wages and other attendant benefits. In such circumstances, the petitioner management has
filed the present writ petition before this Court, under Article 226 of the Constitution of India.
The learned Counsel appearing on behalf of the second respondent had stated that the writ petition filed on behalf of the petitioner stores is
devoid of merits and therefore, it is liable to be dismissed. It has been stated that the second respondent has been working as a helper from the
year 1989, on daily wages. He was paid a consolidated salary of Rs. 750/- per month, from the month of April, 1992. Thus, the second
respondent is a permanent employee of the petitioner stores. On May 2, 1997, he was orally asked by the management of the petitioner stores to
perform the work of a salesman, without taking any stock in the provisions department of the petitioner stores. Since the second respondent was
not sufficiently qualified or experienced to perform the duties of a salesman, he had declined the offer. However, when he had reported for duty he
was informed that his service in the petitioner stores had been terminated. On May 12, 1997, he was served with an order, dated May 7, 1997,
terminating his service in the petitioner stores. Therefore, the conciliation proceedings initiated before the Labour Officer had ended in a failure and
the failure report had been submitted by the conciliation officer. Thereafter, the second respondent had moved the first respondent Labour Court,
raising an industrial dispute, under the provisions of the Industrial Disputes Act, 1947.
The second respondent had stated that the petitioner Stores had not issued any notice to the second respondent. No charges were framed
against the second respondent. No domestic enquiry had been conducted before the order of termination had been passed. The charge that the
second respondent had used vulgar and filthy language against the Vice President of the petitioner stores was not mentioned in the order of
termination. On the contrary, M.W.1 who was examined as a witness on behalf of the management, had stated before the first respondent Labour
Court that the second respondent employee had demanded an order of appointment as a salesman on April 30, 1997. He had also stated that the
second respondent is guilty of misappropriation. Since the evidence deposed on behalf of the petitioner Stores was inconsistent and since there
was no evidence to prove the charges levelled against the second respondent, the Labour Court had come to the right conclusion and had ordered
reinstatement of the second respondent, with continuity of service, with back wages and other attendant benefits. The Labour Court had found that
the resolution, said to have been passed by the petitioner Stores, had not been produced before the first respondent Labour Court. The allegations
against the second respondent, that he had disobeyed the orders passed by the management of the petitioner stores and that he had used vulgar
and filthy language against the vice president of the petitioner stores, had not been proved. In such circumstances, the Labour Court had rightly
ordered the reinstatement of the petitioner with back wages and all other attendant benefits, by its award, dated September 18, 2000, made in I.D.
No. 96/1998. Hence, the present writ petition is liable to be dismissed.
In view of the submissions made by the learned counsels appearing for the petitioner, as well as for the second respondent, and on a perusal of
the records available before this Court, it is clear that the management of the petitioner stores has not shown sufficient cause or reason for this
Court to interfere with the award of the first respondent Labour Court, dated September 18, 2000, made in I.D. No. 96/1998. The petitioner
management had not issued any notice to the second respondent delinquent employee nor it had conducted a domestic enquiry to prove the
charges levelled against the second respondent. The order of termination from service issued against the second respondent was illegal as it had
been passed without following the principles of natural justice. Even at the time of the enquiry the petitioner stores was given sufficient opportunity
to let in evidence, both oral as well as documentary, to prove the charges levelled against the second respondent employee. However, the
management of the petitioner Stores had failed to prove the charges levelled against the second respondent. Sufficient and acceptable evidence
was not made available before the first respondent Labour Court to hold the second respondent guilty of the charges levelled against him. It is not
a case of no evidence nor is it a perverse finding by the Labour Court.
In such circumstances, this Court does not find sufficient grounds to set aside the impugned award of the first respondent Labour Court, dated
September 18, 2000, made in I.D. No. 96/1998. This Court while exercising jurisdiction, under Article 226 of the Constitution of India, does not,
in normal circumstances, re-appreciate evidence. Unless, the findings of the first respondent Labour Court is found to be perverse, or if it is found
that the findings had been based on no evidence, this Court would be reluctant to upset such findings. The petitioner Stores has not been in a
position to show that the first respondent Labour Court had grossly erred in coming to its conclusions. In such view of the matter, the writ petition
is liable to be dismissed. Hence, it is dismissed. No costs.