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Judgment
K. Chandru, J.—The first writ petition viz., W.P. No. 37091 of 2003 was filed by theManagement of Hirsch Watch Straps (P) Ltd. Hosur,
challenging the award dated09.06.2003 passed by the first Respondent # Labour Court, Salem in I.D. No. 486 of1998. By the aforesaid order,
the Labour Court set aside the punishment imposed on the contesting Respondent workman (H. Rajan) and directed reinstatement
withoutbackwages, but with service continuity and other benefits.
The writ petition viz., W.P. No. 37091 of 2003 was admitted on 18.12.2003. Pending the writ petition, this Court granted an interim stay in
W.P.M.P. No. 45025 of 2003. Thereafter, the contesting Respondent workman took out an application in W.V.M.P. No. 585 of 2004 for
vacating the interim order and also filed an application in W.P.M.P. No. 10474 of 2004 seeking for a direction to the Management to pay the last
drawn wages u/s 17-B of the Industrial Disputes Act, 1947 (shortly ""the Act""). But no orders were passed in the application for vacating the
interim order. In the application seeking interim direction for payment u/s 17-B of the Act, this Court by order dated 26.04.2004 directed the
Management to pay arrears of wages from the date of the award passed by the Labour Court, within two weeks.
The case of the contesting Respondent workman is that the Management has paid only Rs. 19,947/- in terms of Section 17-B of the Act till
March 2007 and he had not been paid wages after April 2007. But was informed by a letter dated 02.05.2007 that he was reinstated and
subsequently terminated on the ground that the factory at Hosur has been closed. The contesting Respondent workman raised a dispute against the
closure of the Petitioner - Establishment and as per the affidavit sworn to in support of the Contempt Petition No. 910 of 2009, the same is
pending consideration. Since the main writ petition is still pending and without the orders of this Court, the payment u/s 17-B of the Act has been
stopped, the Contempt Petition came to be filed.
When the contempt petition came up on 08.07.2010, this Court directed notice to be issued to the learned Counsel for the Management. When
the contempt petition came to be posted on 28.07.2010, the then counsel for the Management informed that they are no longer the counsel and
therefore, notice was directed to be issued to the Management. Subsequently, it was informed that the Management was represented by M/s.S.
Ramasubramaniam and Associates. Even the said counsel informed on 21.04.2011 that they are not appearing for the Management and hence, the
name of the Management was directed to be printed. Since the contempt arose out of the interim order dated 26.04.2004 passed in W.P.M.P.
No. 10474 of 2004 in W.P. No. 37091of 2003, the said writ petition was directed to be posted along with the contempt petition.
In the meanwhile, the contesting workman Mr. H. Rajan also filed a writ petition in W.P. No. 30737 of 2004 seeking to challenge the portion of
the award by which he was denied the relief of back wages. When that writ petition came up for hearing on 20.10.2004, the same was admitted
and was also directed to be posted along with W.P. No. 37091 of 2003. For the sake of convenience, parties are referred to as ""workman"" and
Management"" as the case may be.
The stand of the workman before the Labour Court was that he was the Vice President of Hirsch Employees'' Union and the Management,
because of his union activities, wanted to punish him. He has been working as a Machine Operator with effect from 23.11.1992. On 01.10.1996,
the workman along with office bearers of his Union were standing in front of the factory gate and collected subscriptions. At that time, one
workman, by name Ms. R. Kanchana asked that she may be dropped in the bus stand in her two wheeler. She told that her paternal uncle had
passed away and therefore, she was hurrying to the bus stand. But another Vice President by name Mr. Maria Balraj informed the workman that
he can take his two wheeler viz., TVS 50 to drop her in the bus stand. Therefore, the workman took the two wheeler of Mr. Maria Balraj and
dropped her in the bus stand. The Management used this incident and took a statement from her that he misbehaved with her by placing his hand
on her breast. On 03.10.1996, the workman was sent out of the factory. He was not given any written order, but orally informed that necessary
tapal has been sent to him.
The workman gave a protest letter and also raised a dispute before the Labour Officer, Krishnagiri and the Labour Officer was informed by the
Management that he cannot be taken back in service, as he has been suspended from service pending enquiry. A domestic enquiry was ordered.
In the domestic enquiry, instead of marking the original complaint, a complaint, notarised by an advocate, was marked as a statement of the
woman workman. Despite the workman asked questions in the cross examination, the same was not recorded properly. On the basis of the
enquiry report, the workman was issued a show cause notice, asking him to show cause as to why he should not be dismissed from service. The
workman gave a reply to the said show cause notice. Not satisfied with his reply, a dismissal order dated 31.05.1997 was passed against the
workman.
The Petitioner raised a dispute against his non-employment u/s 2-A(2) of the before the Labour Officer, Krishnagiri. The Management did not
raise any objection and also did not appear before the Conciliation Officer. The Conciliation Officer, as he could not bring mediation, gave failure
report.
On the strength of the failure report, the Petitioner filed a claim statement before the Labour Court, Vellore dated Nil December 1997. The
Labour Court, Vellore took it on file as I.D. No. 486 of 1998 and issued notice to the Management. The Management filed their counter statement
dated 27.12.1997. Subsequently, on the formation of Labour Court at Salem, the matter was transferred to the Labour Court, Salem.
Before the Labour Court, on behalf of the workman, 7 documents were filed and marked as Exs.W1 to W7. On the side of the Management,
15 documents were filed and marked as Exs.M1 to M15. Both sides did not adduce any oral evidence.
The Labour Court found in para 7 of the award that before the Labour Court, the workman did not object to the procedure adopted by the
Enquiry Officer and also did not challenge the findings of the Enquiry Officer and therefore, it held that there was no necessity to decide the
preliminary issue regarding the validity of the enquiry and the findings of the enquiry officer. According to the Labour Court, parties have confined
themselves only to arguments on the quantum of penalty and invoked the jurisdiction of the Labour Court u/s 11-A of the Act to go into the
proportionality. The Labour Court held that the objection regarding jurisdiction namely since the incident had taken place outside the factory gate
and outside duty hours, no action can be taken, since it is not a misconduct covered by the provisions of the certified Standing Orders (marked as
Ex.M15). But on placing reliance on the Standings Orders - Ex.M15, the Labour Court found that Standing Orders provide for action to be
initiated for the incident relates to employment and therefore, it overruled the objection. The said Standing Orders reads as follows:
... for commission of any act subversives or discipline whether within the premises or outside, whether within duty hours or outside duty hours
under Certified Standing Orders as applicable to you Standing Orders clause Nos. 25.2(f), 25.4(d) & 25.4(e).
On appreciation of the materials so called, the Labour Court held that the workman''s explanation that out of tension while moving the handle
bar, incidentally his hand fell on the woman worker. He also stated that there was a lorry came in front of the two wheeler and it was impossible to
drive the vehicle with one hand and doing the other hand for dishonouring the woman worker. Even the workman worker had agreed that his hand
fell on her breast. There was no previous misconduct committed by the workman and it is not as if in order to bring disruptive to the woman
worker, he had behaved with that fashion.
Though the Management relied upon the judgment of the Supreme Court in Vishaka and others Vs. State of Rajasthan and Others, the Court
strangely held that there was no quarrel over the proposition laid down by the Supreme Court. If the workman had with a view to sexually harass
the woman worker, did anything wrong, he deserves severe penalty. But the workman is an office bearer of the Union. The incident had taken
place on 01.10.1996. But without conducting any enquiry, the workman was denied employment and the issue was taken up by the Union before
the Labour Officer, Krishnagiri. The fact that the Management denied employment as soon as the woman worker gave a complaint on 03.10.1996
shows that the Management was waiting for an opportunity and from 31.05.1997 onwards the workman was not in employment. Though the
punishment of dismissal was not a proper punishment to deny back wages, granting relief of reinstatement is a sufficient punishment. Accordingly,
the Labour Court ordered reinstatement with service continuity and other attendant benefits, but denied back wages.
In so far as the writ petition filed in W.P. No. 30737 of 2004 is concerned, the workman had not attacked the findings rendered by the
Labour Court, in paragraph 7 of its award. Accordingly, the Labour Court held that there was no attack against the procedure adopted in the
enquiry.
In the present case, it must be seen that the Labour Court did not even go into the documents produced by the Management in Exs.M1 to
M14 and did not refer to the evidence recorded in the enquiry. In a charge of sexual harassment, especially when the Management had referred to
the judgment of the Supreme Court in Vishaka''s case (cited supra) before the Labour Court and when the Labour Court after holding that there
was no quarrel over the proposition laid therein, ought to have referred to the judgment of the Supreme Court and should have let out its mind in
understanding the law on the said subject relating to sexual harassment of woman in work place. In this regard, paragraphs 16 and 18 of the
judgment of the Supreme Court in Vishaka''s case (cited supra) is extracted herein:
In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms
specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise
of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be
treated as the law declared by this Court under Article 141 of the Constitution.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement
of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted
to occupy the field.
These writ petitions are disposed of, accordingly.
May be on the date when the incident had taken place namely on 01.10.1996,the judgment laid down by the Supreme Court that a mandatory
direction under Article 141 of the Constitution of India to all the employers to follow the judgment, until the law is enacted, was not available to the
Management and therefore, one cannot blame the Management for not constituting the Complaint Committee as per the said judgment. But on the
other hand, the Management would examine the woman workman Ms. R. Kanchana W/o. Ranganathan, aged 26 years before the enquiry officer.
She was subjected to cross examination by the workman in the domestic enquiry. In fact, the said woman worker has given a written complaint
and also requested the Management not to invite her for an enquiry. Notwithstanding the same, she was examined in the domestic enquiry and
allowed to cross examine extensively by the workman.
After recording the chief examination of the woman worker, it was adjourned for cross examination on 21.01.1997, 05.02.1997, 13.02.1997,
20.02.1997,25.02.1997, 26.02.1997 and 08.03.1997. On behalf of the Management, oneDhamodharaju was examined as M.W.1 and Mr.
Mohammed Nurulla was examined as M.W.3The workman examined himself as W.W.1 and on his behalf, one Mr. Selvaraj andMr. Maria Balraj
were examined as W.W.2 and W.W.3. The enquiry officer, on the basis of the materials, gave an enquiry report dated 24.04.1997 holding that
the Petitioner was guilty of the charges of molesting of a co-woman worker. He also recorded that a woman will not make such a false complaint,
especially when she belongs to the same Union. The evidence produced on the side of the workman was disbelieved. It is on the basis of this
report, a show cause notice was given and after considering the workman''s explanation, the Management found that the workman should not be
retained in service for having committed the said grievous misconduct.
In the impugned award passed by the Labour Court, there is no reference to any of the evidence. The Labour Court had failed to even look
into the enquiry proceedings. This Court was constrained to refer to certain material evidence found against the workman. It is necessary to refer
to the question and answer found in the cross examination and also a portion from the chief examination:
VERNACULAR (TAMIL) PORTION DELETED
Not only the woman worker W.W.2 gave a clear statement in the chief examination and stuck to her written complaint given earlier, but also
bestowed in the cross examination in a admirable manner. But it is unnecessary to go into the findings of the enquiry officer, as the guidelines issued
in Vishaka''s case (cited supra) followed by the Supreme Court in D.S. Grewal Vs. Vimmi Joshi and Others, were not available either to the
Management or to the workman. It is not proper for the Presiding Officer of the Labour Court to ignore the binding precedent, in the light of the
dictum laid down in Vishaka''s case (cited supra).The Labour Court had unfortunately did not choose to follow the spirit behind the judgment of
the Supreme Court in Vishaka''s case (cited supra).
In the present case, on the strength of the strong evidence against the workman and also the certifying Standing Order, were not in support of
the workman, the Labour Court ought not to have interfered with the penalty imposed by theManagement. The Management had taken all
precautions in conducting a full-fledgedenquiry and written a detailed order. Even though the woman worker refused to come for an enquiry, on
the second thought, she had appeared before the enquiry, bestowed the cross examination and faced impressing questions put by the workman
and his defence assistance. It is only in cases where the Labour Court finds that the enquiry was not fair and proper, or the findings of the Enquiry
Officer are perverse, interference u/s 11-A of the Act is called for. It is not a case where any re-appreciation of evidence was called for and on the
other hand, the findings of the Labour Court by holding that it was an accidentally touch made by the workman and not a case of molestation and
there was no prior incident regarding the same, is a clear case of perversity and having a blind approach to the issue on hand. It is on the basis of
the misplaced sympathy, the Labour Court granted relief to the workman by ordering reinstatement, without back wages, but with service
continuity.
This Court do not appreciate the stand of the Labour Court and the award of the Labour Court is liable to be interfered with. There is no
necessity to interfere with the quantum of punishment, when the evidence placed against the workman was completely justified and the findings of
the misconduct and also the proportionality of punishment, does not call for any interference. Hence, the impugned award of the Labour Court
dated 09.06.2003 passed in I.D. No. 486 of 1998 stands set aside and the writ petition in W.P. No. 37091 of 2003 stands allowed.
In view of the award being set aside, the question of grant of entertaining the writ petition in W.P. No. 30737 of 2004 at the instance of
workman cannot be countenanced. Hence, the writ petition in W.P. No. 30737 of 2004 stands dismissed.
Since the contempt petition in Cont.P. No. 910 of 2009 arose out of non payment of amount u/s 17-B of the Act after a particularly period
namely date of closure, it is unnecessary to go into the said issue. Since this Court had already set aside the award, the workman is not eligible for
any further relief. Since the amounts already paid u/s 17-B of the Act, as per the order of this Court, is in the nature of subsistence allowance, the
question of recovering the same does not arise.
In the result, the writ petition in W.P. No. 37091 of 2003 stands allowed, writ petition in W.P. No. 30737 of 2004 stands dismissed and
Contempt Petition No. 910 of 2009 stands dismissed. However, the parties are allowed to bear their own costs. Consequently, connected
miscellaneous petitions are closed.