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Judgment
K. Chandru, J.—Heard the arguments of Mr. Karthik, learned Counsel representing T.S. Gopalan & Co. and appearing for the
Management and Mr. Balan Handass, learned Counsel appointed as Amicus Curiae for the unrepresented workmen and perused the records filed
by the parties as well as the original records summoned from the first respondent Labour Court.
W.P. No. 6196/1998 is filed by the Management against the common Award dated] August 18,1997 made in I.D. No. 531/1989 (S.
Marudupandian) and I.D. No. 533/1989 (S. Gunasekaran). In I.D. No. 531/1989, the Labour Court directed reinstatement of workman
Marudupandian with continuity of service and back wages. In I.D. No. 533/1989, in respect of workman S. Gunasekaran, he was given the relief
of compensation of a sum of Rs. 40,000/- in lieu of reinstatement.
W.P. No. 6197/1998 is filed by the'' Management against the preliminary order dated July 9, 1993 made in I.D. No. 533/1989 wherein the
enquiry conducted by the Management was found to be vitiated and; opposed to the principles of natural justice.
W.P. No. 8149/1998 was directed against the preliminary order dated July 9,1993 made in I.D. No. 531/1989 in which the Labour. Court
held that the enquiry held against the workman Marudupandian, was vitiated. The Management at that time itself filed a writ petition being W.P.
No. 2735/1994 challenging the said order and this Court dismissed the writ. petition by an order dated February 25, 1994'' holding that such
challenge without the trial being completed, was not maintainable.
An interim stay was granted by this Court on April 29, 1998 against the-enforcement of the Award and since the workmen were not
represented, the stay was also made absolute on December 20,2002.
Even after the matters were listed for, final hearing as the workers were not represented by counsel, Mr. Balan Haridass, learned Counsel was
appointed as Amicus Curiae vide order of this Court dated April 17, 2008. He had readily agreed to represent the case of the workmen. This
Court places on record the valuable assistance supported by legal precedents rendered by the Amicus Curiae.
Before the Labour Court, a counter statement was filed by the petitioner Management and in paragraph 15, the Management sought for liberty
to adduce fresh evidence in case the Court comes to the conclusion that the enquiry was vitiated. The Labour Court, by its order dated July 9,
1993, came to the conclusion that the enquiry was vitiated. Thereafter, before the Labour Court, the two industrial disputes were tried together
and on the side of the workmen, Marudupandian was examined as W.W. 1 and on the side of the Management, witnesses were examined as
M.W.I to M.W.5. While 13 documents were filed on the side of the workmen and marked as Exhibits W-1 to W-13, on the side of the
Management, 36 documents were filed and they were marked as Exhibits M-1 to M-36.
The Labour Court, on an analysis of the evidence (both oral and documentary), came to the conclusion that the charges were not established. It
held that the complaint Exhibit M-2 was given by one Chandramouli against the workmen and he was not examined. Even though it was claimed
that the said Chandramouli had resigned, the Court held that he could have been summoned through Court summons. Therefore, the Labour Court
held that the Charge No. 4 was not proved. Likewise, in Exhibit M-3, the date of incident had not been mentioned and no statements were
obtained from the lorry agent Subramanian and he was also not examined before the Court and, therefore, it rejected the basis of Exhibit M-3. It
also held that though for the charge under Exhibit M-8, the basic document was Exhibit M-1, the complainants Pandiyarajan and Jayachandran
were not examined before the Court. It, therefore, held that the said charge was also not proved.
With reference to the fourth charge, the basic report was Exhibit M-10 signed by one Ramasamy, the then General Manager was also not
examined and hence, the said charge was held not proved. In the light of the same, since no satisfactory evidence was let in before the Labour
Court, it held that the charges have not been proved and it granted relief as noted elsewhere. In respect of the workman S. Gunasekaran,
compensation was directed to be paid because it was alleged by the Management that he already got employed in some outstation. However, the
said Gunasekaran had not filed any writ petition. Therefore, to that extent, the said relief cannot be interfered with.
Having found that the Labour Court had gone into evidence placed before it and appreciated the same and rendered a finding of fact, this
Court under Article 226 of the-Constitution of India, cannot review the same. Therefore, Mr. Karthik, learned Counsel for the Management
concentrated his attack more on the preliminary order dated July 9, 1983 challenged in W.P. Nos. 6197 and 8149/1998.
Mr. Balan Haridass, learned Amicus Curiae submitted that non-examination of the complainants is material and, therefore, there cannot be any
fault on the part of the labour Court in coming to the conclusion which it had reached. In this context, he referred to the judgment of the Division
Bench of this Court in B. Padmaiah v. Union of India and Ors. 2007 W.L.R. 7 and more particularly, referred to the passage found in paragraph
21, which reads as follows:
... The failure to examine the complainant whose complaint is the basis for the disciplinary action against the petitioner and the failure to provide an
opportunity to the petitioner to test the veracity of the complaint made against him has resulted in the deprivation of right of the petitioner amounting
to gross violation of principles of natural justice and thereby, making the entire disciplinary proceedings vitiated....
On the question of discrimination shown by the Management because it had reinstated several workmen, who were also accused of similar
charges, the learned Counsel relied upon the judgment of the Supreme Court in Sengara Singh and Others Vs. State of Punjab and Others, ; and
referred to paragraph which is as follows at p. 164ofLLJ:
What then should be done? The appellants have been accused of participating in a procession taken out by the members of the Police Force for
ventilating their grievances about their service conditions. May be that still having not reached the stage of tolerance for formation of associations
amongst police personnel, the demonstrators may be looked upon with disfavour. But approaching the matter from this angle, all the 1100
dismissed members of the Police Force were guilty of same misconduct namely indiscipline to the same extent and degree as the present
appellants. Now if the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after
withdrawing the criminal cases against them, they could be reinstated, we see no justification in treating the present appellants differently without
pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who
were reinstated. Respondents failed to explain to the Court the distinguishing features and therefore, we are satisfied in putting all of them in same
bracket. On that conclusion the treatment meted to the present appellants suffers from the vice of arbitrariness and Article 14 forbids any arbitrary
action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution. The Court must accordingly interpose and
quash the discriminatory action.
The learned Counsel also relied upon the judgment of this Court in Workmen of India Cements Ltd., Salem v. Labour Court, Coimbatore and
Ors. 1988 (2) LLN 755, which was also confirmed by a Division Bench of this Court vide its decision in India Cements Ltd., Sankari West v.
Labour Court, Coimbatore and Ors. 1989 (2) LLN 319 for the very same proposition.
However, Mr. Karthik, learned Counsel appearing for the Management relied upon the judgment of the Supreme Court in Workmen Vs.
Bharat Fritz Werner (P) Ltd. and Another, and more particularly, relied upon the passage found in paragraph 21 and submitted that even if the
charges are not proved, this is not a fit case where any reinstatement and compensation can be ordered at p.234of LLJ:
The misconduct that has been found established against these five workmen involves threatening the highest executive, viz. the President of
Company, with dire consequences, wrongfully confining him in his room and compelling him to withdraw the notice. These acts of misconduct
involve acts subversive of discipline on the part of, these workmen. Three of these workmen were office bearers of the Union. It cannot be said
that these workmen had acted at the instigation of somebody. Taking into consideration the facts and the-circumstances of the case, we are of the
opinion that, keeping in view the interests of the industry, this is a case where it can be said that it is not desirable and expedient to direct
reinstatement of these workmen. In our view, therefore, the direction with regard to reinstatement of these workmen cannot be sustained and in lieu
of reinstatement they may be paid compensation for loss of future, employment.
The material question with reference to the preliminary issue is whether the Labour Court was entitled to hold that the enquiry was vitiated on
the ground that there is no proper service of notice of enquiry on the workmen. The original documents produced before this Court clearly show
that the notices were not sent to the workmen to their respective address given at the time of joining in the factory but to their Union office at
Singampunari. As it was not functioning at that time, the letters were redirected to their trade Union headquarters office at Madurai. In that office,
the letters were; not received by any one and it came back unserved. A similar attempt was repeated in all communications sent by the
Management. It cannot be taken as sufficient notice for the workmen to participate in the enquiry. It is only in a newspaper advertisement in
''Dhinathanthi'' dated August 27, 1987, a public notice was given regarding the enquiry.
Mr. Karthik, learned Counsel for the Management, pointed out that there was a reference in their claim statement that they were present in the
factory at the time of enquiry and, therefore, it was not open to them to contend otherwise. But that averment was denied in the counter statement
filed by the Management. Even otherwise, unless and until the workmen are served in the manner known to law, the Management''s action after
sending notices to wrong addresses and when they were not served, publishing it in the newspaper, cannot be taken to be a sufficient service.
In this context, it is necessary to point out the relevant Standing Orders found in the Certified Standing Orders of the Management (marked as
Exhibit M-25). Standing Order 20 reads as follows:
Notice: 1) Any matter required to be notified under these standing orders and any notice by the employer to the workman in the industrial
establishment shall be displayed on notice boards maintained for the purpose at conspicuous place in the premises of the industrial establishment.
2) Any notice or communication intended for any workman personally may be delivered to him personally in the premises of the industrial
establishment or sent to him by post to the address of the workman as specified in the service records as or otherwise furnished by him.
3) Any matter required to be notified under these Standing Orders and any notice or communication by the employer to the workmen in the
industrial establishment shall be in Tamil. Provided that if the majority of the workmen in the industrial establishment know English or any other
regional language and express a desire to receive communications in that language, the communication may be sent to the workman in that
language.
(emphasis added)
In the present case, number of notices were . in English and on that ground also, the enquiry can be held to be invalid.
As seen from the above, under Standing Order 20(2), notice will have to be served only to the address of the workmen as specified in the
Service Record. The Management''s contention that they had sent notice as required under the Service Rules cannot be accepted. The Supreme
Court in its judgment in Union of India and Others Vs. Dinanath Shantaram Karekar and Others, observed in paragraph 10 as follows at p. 750 of
LLJ:
Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom
the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-
cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations,
the employee is given an opportunity to submit his reply, the theory of communication cannot be invoked and actual service must be proved and
established. It has already been found that neither the charge-sheet nor the show-cause notice were ever served upon the original respondent,
Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated.
This Court by its order in W.P. No. 4 36779 of 2006, disposed on September 4,2007 A. Anandan v. Chairman, food Corporation of India
(rendered by me) dealt with similar question arose out of the FCI Staff Regulations. There, it was held that mere publication, without exhausting the
other modes of service, is not sufficient service. Paragraph 12 of the order reads thus:
Regulation 75(iii) clearly states that if any employee for whom notice is sent by registered post returned unserved, it should be published in the
local/regional language newspaper and in addition to that, an All India Newspaper as appropriate and upon such publication only, it can be
deemed to have been personally served on such employee. Nowhere the respondent FCI had complied with the Regulation 75(iii) of the
Regulations. The only option open to the FCI is to publish either in the local or in the regional language newspaper and All India Newspaper and it
does not talk about publication in any English newspaper, which is neither the local nor regional language. Therefore, the fault is on the FCI taking
advantage of the deemed service provided under Regulation 75(iii) of the Regulations. The basis on which the show cause notice was issued and
the removal order do not exist, as admittedly, the publication was done only in English newspaper.
The said matter was taken on appeal before the Division Bench of this Court in W.A. No. 1420 of 2007 Chairman, Food Corporation of
India v. A. Anandan and the Division Bench, headed by Chief Justice A.P. Shah, vide judgment dated March 6, 2008, dismissed the Writ Appeal.
Speaking for the Bench, Chief Justice A.P. Shah, as he then was) in paragraph observed as follows:
Regulation 75(iii) clearly states that if any employee for whom notice is sent by registered post returned unserved, it should be published in the
local/regional language newspaper and in addition to that, an all India newspaper as appropriate and upon such publication only, it will be deemed
to have been personally served on such employee. Admittedly, the FCI had not complied with Regulation 75(iii) of the Regulations. Under Clause
(iii) of Regulation 75, only option open to the FCI is to publish either in the local or in the regional language newspaper and also an all India
newspaper. However, there was no publication in the local/regional language newspaper. A submission was made on behalf of the appellants/FCI
that the word ""appropriate"" suggests that the FCI has an option to publish it in the local/regional language newspaper or in an all India newspaper
and publication in an appropriate all India newspaper should be regarded as substantial compliance with Regulation ; 75(iii). It was contended that
if the word ""and"" is read as ""or"", it cannot be said that there was non-compliance of Regulation 75(iii). The argument stated is only to be rejected.
On a plain reading of Clause (iii) of Regulation 75 it is seen that the requirement of publication in the local/regional language is mandatory and a
notice shall be deemed to have been personally served on the employee only upon such publication.
Once the Management''s case regarding the preliminary order goes, then there is very little for them to contend against the main Award of the
Labour Court. The Labour ; Court had dealt with the evidence tendered before it threadbare and no fault can be found to it.
In the light of the above, the writ petitions deserve to be dismissed. Accordingly, they stand dismissed. However, there will be no order as to
costs. The Management is directed to comply with the Award impugned in W.P. No. 6196/1998 within a period of four weeks from the date of
receipt of a copy of this order.