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Judgment
A. Packiakaj, J.—This appeal arises out of the orders passed in Writ Petition No. 859 of 1991, dated July 23, 1996, dismissing the writ
petition.
The prayer in the writ petition is for quashing the award passed in I.P. No. 233 of 1984 dated May 22, 1990, and directing the reinstatement of
the second respondent Sri L.N. Swaminathan by name with consequential benefits, passed by the Labour Court.
The facts of the case as disclosed in the affidavit are as follows: Sri L. Swaminathan was an employee in the category of setter operator in the
bush forming Section of the petitioner-company. The work of a setter operator is to attend to the machine, feed the metal strips, start the machines
and remove the finished products. It appears that in the month of August-October 1982, there was a fall in the production and hence a notice
dated September 21, 1982, was issued by the works manager wherein it has been stated that the workmen concerned still persisted in wilful and
deliberate slowing down of production and were adopting go-slow tactics. But however, the workmen were continuing to go-slow despite the
companies earlier notices, advising them to desist from go-slow tactics. This notice was however followed by another notice, dated September 24,
1982, in which also it was averred by the writ-petitioner-company that the production continued to be very much lower than the level of the
production of the minimum quantity and that the workmen were continuing their go-slow process. As already advised if the workmen continue to
adopt the go-slow tactic, the management will have no alternative but to take further disciplinary action against them.
In view of the same, the second respondent was issued with the chargememo, followed with the suspension order. After receiving the same the
second respondent Sri L.N. Swaminathan gave an explanation denying the allegation therein and more particularly he has stated in clear and.
unequivocal terms that he had no intention of slowing down the progress of his work and that he has been victimised by the management.
It is after this explanation an enquiry was conducted at the instance of the appellant-company. Three witnesses were examined on behalf of the
management and two witnesses including the second respondent were examined on the side of the workmen. After the enquiry, the enquiry officer
found the second respondent guilty of the charges levelled against him and based on the findings of the enquiry officer, the second respondent was
dismissed from services by the dismissal order, dated July 14, 1983.
It is against the above said order, the second respondent approached the Labour Court which in view of Section 11-A of the Industrial Disputes
Act reappraised the evidence on record, had set aside the order of the enquiry officer and held that the second respondent has not adopted the
go-slow process wilfully, ultimately directing the management to reinstate him. It is against this order, the writ petition has been filed.
The learned Judge who heard the writ petition, after going through the affidavit of the petitioner as well as the respondent, dismissed the writ
petition. The explanation given by the second respondent was that though he was appointed as a setter operator and there were two setter
operators in his department, after a particular period of time the other setter operator had been shifted and therefore, this necessitated him to
perform the total work including the work of the other setter and hence there might have been deficiency in the output.
In addition to the above said contention, the second respondent has also raised that a person by name Rajamanickam who has been placed in
the same footing and whose output had also been considerably reduced in the same period has been left out and no enquiry or show-cause notice
was issued to him, which apparently reveals the vindictive attitude of the management as against this petitioner alone. The writ-petitioner would also
contend that in the case of Rajamanickam who according to the second respondent has been left out has apparently was not above to keep up
with the production because he was assigned the work of a heavy setter operator and therefore, Rajamanickam was not able to maintain the same
production. But it is pertinent to note that the management has not let in any evidence to show the difference between a light setter and heavy setter
and consequently there was no discrimination. However, the learned Judge after considering all these matters, refused to interfere with the orders
of the Labour Court.
Now in this appeal, several contentions have been raised before this Court. The main being that the Labour Court ought not to have reserved
the finding of the enquiry officer without adverting to the reasons given by the enquiry officer. Secondly, the Labour Court ought not to have
interfered with the order of the enquiry officer who had given a valid reason for rejecting the plea of discrimination and it was not open for the
Labour Court to ignore the said finding. Thirdly, the Labour Court had failed to see the nature of the operation of the setting work perpetrated to
have been done by the second respondent and the setting work done by Rajamanickam.
Though these contentions have been raised, a reading of the order of the Labour Court would make it appear that the Labour Court in its
jurisdiction contemplated u/s 11-A of the said Act has analysed the evidence and has given a clear finding in relation to the issues invoked. The
contention that the findings has not been considered and sufficient reason has not been given to. counter the findings of the enquiry officer may not
also appear to be tenable under the facts and circumstances of this case. What has literally weighed with the Labour Court and rightly so is the fact
that though the production by the second respondent has come down, it does not seem to have been done so wilfully.
At this stage it is pertinent to go into the aspect of the charge, the explanation offered and the finding of the Labour Court, the finding of the
enquiry officer, vis-�-vis, the finding of the Labour Court. The notice, dated September 21, 1982, and the chargememo, dated November 4,
1982, clearly state that the workmen were still persistent in wilfully and deliberately slowing down of production. Therefore, the essential
ingredients of the charge are not mere reduction in production alone, but is the wilfulness and the deliberation on the part of the second respondent
with an avowed object to slow down the progress of production. Besides this a general allegation has been made when the notice was addressed
to all the workmen, in the plural. It is this element that appears to be the gravamen of the charge. Therefore, it follows that the initial burden on the
part of the management who makes the accusation has to establish the same in the enquiry if not at least they must have let in some evidence that
would enable the workman to repudiate the same.
It is by way of reply, though cryptic, the second respondent has denied having committed any irregularity and has categorically stated that he
has no intention whatsoever to slow down the production. So against these two notices and reply, we are confronted with the evidence of the
witnesses examined by the management. It is pertinent to note at no place there is any averment whatsoever, worth the name that the second
respondent herein slowed down the work wilfully and deliberately we may not even go to the extent of stating that in the circumstances of the case,
the management should prove the wilful nature and the deliberation on the part of the workmen to slow down the work. But the basic requirement
that is required to be the foundation of the charge has to be necessarily spelt out in the evidence. If any of the witnesses in their evidences had
stated that the workman has deliberately and wilfully reduced the production, then one can reasonably understand that the onus may be shifted to
the workmen to establish that his intention was never to slow down wilfully are deliberately.
In view of the above said contention, the learned counsel for the appellant would rely on the decision of the Supreme Court reported in Orissa
Mining Corporation and another Vs. Ananda Chandra Prusty, : wherein it has been held that in a disciplinary or departmental enquiry, the question
of burden of proof depends upon the nature of the charge and the nature of explanation put- forward by the delinquent officer. Then again in the
same decision, the position with respect to the burden of proof as clarified by the Supreme Court is that there is no such thing as an absolute
burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of explanation and the
nature of the charge. In a given case the burden may be shifted to the delinquent officer, depending upon his explanation. Though this decision has
been relied on by the learned counsel for the appellant, we see that the further observation and finding in the same judgment is only to the
advantage of the second respondent when the Supreme Court has categorically stated that the burden is shifted to the delinquent officer, only
depending upon his explanation and nature of charges. In the present case, the affirm ant in the notice as well as the chargememo is to the effect
that the delinquent officer has deliberately and wilfully slowed down the process. As to how and what was his intention to slow down the process
or how the department was able to allege deliberation and wilful nature has not been spelt out in any of the notices, or in the chargememo.
However, the delinquent officer namely the second respondent herein has categorically denied that he has deliberately or wilfully slowed down the
process. It is after this evidence had been let in and we have no hesitation to hold that there is not an iota of evidence or, material or, allegation in
the evidence of any of the witnesses to indicate or has been spelt out that the delinquent officer slowed down wilfully and deliberately. So in our
view there is no evidence in relation to the allegation of deliberation and wilful nature on the part of the delinquent officer to slow down. The further
examination in cross is not at all necessitated. There is nothing for the delinquent officer to rebut or establish by way of rebuttal evidence.
At this juncture it is pertinent to note that the enquiry officer has not gone into this aspect at all and has nowhere discussed the materials in
respect of this averment and has not even given a finding as to whether the delinquent officer namely the second respondent deliberately and
wilfully slowed down the process. But as against this, the Labour Court has gone into this aspect and has given a categorical finding that the
delinquent officer has reduced the production due to any deliberation or wilfulness on his part. On going through the order we find that this finding
has been given on the basis of the lack of evidence in this case and therefore we are of the opinion that the Labour Court need not necessarily give
a contrary finding to each and every finding given by the enquiry officer. The Labour Court has the power to reassess the evidence under the
Industrial Disputes Act and it has every power to go into that aspect and see whether prima facie the allegations have been spelt out in evidence.
When there is absolutely no evidence on this aspect, then all other matters need not be gone into by the Labour Court. Therefore, in view of the
clear and specific finding we do not see that the order passed by the Labour Court is in anyway erroneous and the learned Judge in the impugned
order has also given a clear finding that the mere reduction of production alone will not amount to go-slow process. In view of this specific finding
by the Labour Court which has been confirmed ar reiterated in the writ petition, we have no other alternative than to dismiss the appeal. Further in
view of the above said finding which by itself would suffice to justify the order of the Labour Court, the other contentions raised by the appellant
need not be gone into. Accordingly, the writ appeal is dismissed. No costs.