P.P. Ponnan vs Labour Court and Others

Jagannadha Rao, C.J.—The appellant workman was the writ petitioner in O.P. No. 4869 of 1987 which was dismissed by the learned Single Judge by judgment dated July 11, 1991. The 2nd respondent is the employer. The appellant was working as headload worker for the 2nd respondent. On March 7, 1983 a show cause notice was given regarding alleged misconduct and then on March 8, 1983 he was suspended pending domestic enquiry. By notice dated March 14, 1983, he was informed that an Advocate was appointed inquiring officer. The allegation was that he beat one of the co-workers while the latter was doing work, and his past conduct was also not good. The appellant admitted the incident, but contended that he acted in self-defence. The Inquiry Officer found the misconduct proved and the employer dismissed the appellant from service. Thereafter the matter was referred under the Industrial Disputes Act to the Labour Court, Ernakulam, in I.D. No. 2 of 1984 and the Labour Court found that there were no procedural irregularities and that the misconduct was proved. It also held u/s 11-A that the past conduct referred to in the charge memo/statement of allegations, together with the finding of misconduct, justified the dismissal. This Award was challenged in the O.P., but the learned single Judge dismissed the writ petition. This writ appeal is preferred against the said judgment.

Learned counsel for the appellant-workman submits that the employer as well as the Labour Court were wrong in not examining the co-worker whom he had, as admitted by him, beaten while the latter was doing work and if he was examined, the appellant could have cross examined him. The examination of MW1, the Inquiry Officer and the documentary evidence on record (Ext. M1 Enquiry File) was no sufficient evidence. It is also contended that the employer ought not to have taken the past record of the appellant into account for arriving at the quantum of punishment and the Labour Court erred in its approach to this aspect of the problem.

As far as the first contention of the learned counsel for the appellant is concerned, it will be noticed that the appellant admitted having assaulted a co-worker, Kumaran, while the latter was doing his work. The Supervisor gave evidence, as noticed by the Labour Court, that he saw the scuffle between the workman and Kumaran. The Labour Court observed (in paragraph 2) that:

"in reply to the show cause notice, the workman virtually admitted that such a fight had taken place."

It found that on that admission, even though no inquiry was necessary, an inquiry was conducted by appointing an Advocate as Inquiry Officer. He gave ample opportunities to the workman. The documents marked were the complaint, the charge-sheet and the replies given by the worker and also the notice of inquiry. The Inquiry Officer was examined as MW1. The entire enquiry file was marked as Ext. Ml. The Labour Court held (in paragraph 2):

"There was no violation of the principles of natural justice".

Adverting to a contention that the worker was not told that he could have the assistance of a co-worker, the Labour Court held that no prejudice was caused because the worker ''admitted* his guilt, The Inquiry Officer had examined as a witness the Supervisor/Clerk who made the complaint and he was cross-examined by the workman at length. Thereafter the workman himself gave evidence. Therefore, we affirm the finding of the Labour Court and of the learned Single Judge that there was no violation of principles of natural justice on account of the non-examination of the co-worker who was assaulted by the appellant.

The next contention is with regard to the taking into account of the past record of the workman by the employer as well as by the Labour Court. The contention is that this was not justified.

In this behalf, we note that the learned Single Judge called for the record of the case and found that even at the time of the charge memo, the worker was put on notice that his past record will also be taken into account and he was asked to show cause. Here, it is to be noticed that the items relating to past record are all in writing and the earlier intervention of the Union pleading for acceptance of the worker''s apology are also on record. The learned Single Judge observed (in paragraph 3):

"After mentioning the incident which led to the suspension, the memo of charges made mention of the earlier incidents and about his apology".

The Learned Single Judge observed (in paragraph 6):

"The charge served on the petitioner made mention of the earlier misconducts".

In the domestic inquiry as noticed by the learned Single Judge,

"petitioner, he gave evidence, was asked about those misconducts. He admitted those misconducts".

It is, therefore, clear that the previous acts of misconduct were mentioned in the charge-memo, and the workman was also questioned about them in the inquiry and he accepted them. Hence there can be no objection for the employer and then the Labour Court taking them into account.

The law relating to the taking into account past adverse record of a workman is well-settled. In The Management of Madras Fertilisers Ltd., Manali, Madras Vs. The Presiding Officer, Additional Labour Court, Madras, Kuppuswami (Died) and M. Kannammal, a Division Bench of the Madras High Court held that, inasmuch as the Management had not given any opportunity to the workman in regard to his past adverse record being taken into account for awarding punishment, the inquiry was vitiated. It was, no doubt, also stated that the defect cannot be cured at a later stage but we need not go into that aspect of the matter in this case before us. In AP. S.R.T.C. v. K. Jelman Reddy (1990) 1 A.W.R. 754, a Division Bench of the Andhra Pradesh High Court, to which one of us (Jagannadha Rao, C.I.) was party, observed that inasmuch as, as a fact, the past record was an integral part of the charge, there was no violation of principles of natural justice. (Certain other principles laid down there, namely that if the domestic inquiry is held vitiated otherwise and the management is permitted to adduce evidence before the Labour Court u/s 11A, it could place the past record also before the Court, do not arise, in the case before us and we express no opinion on that question). Suffice it to say that, on the facts of the present case, the domestic enquiry has been held to be validly held and the charge-memo itself referred to the past conduct and the workman was questioned about the same and he accepted the correctness of the past acts. In dealing with matters under Article 311 also, the Supreme Court laid down similar principles: see State of Mysore Vs. K. Manche Gowda, and The State of Uttar Pradesh and Others Vs. Harish Chandra Singh, . In the case before us, therefore, the management had not committed any error in taking the past record into account.

Coming then to the punishment of dismissal actually imposed, the following acts of past conduct were taken into account. The learned single Judge mentioned in paragraph 3 of the judgment that the inquiry files revealed that ''on a number of occasions, petitioner was served with memos of charges. In two instances, he sought pardon from management. Consequently no action was taken. On October 22, 1981, he took a small quantity of tea from the store and handed it over to a lady. On the allegation of theft, misappropriation and cheating, he was placed under suspension pending inquiry. The Union interfered in the matter. They, by their letter dated November 3, 1981, requested the management to exonerate the workman from the charges and to allow him to join duty. They forwarded a letter of apology written by the petitioner. The Union was informed that if any misconduct is found against the workman in future, no sympathetic consideration can be made. It was thereafter the present incident took place. The Labour Court referred to the past conduct in paragraph 5 of its order and held that punishment of dismissal was not disproportionate. In the circumstances, this Court cannot interfere.

The appeal fails and it is accordingly dismissed.