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Judgment
K. Chandru
The petitioner is a Trade Union affiliated to INTUC. In this writ petition, they have come forward to challenge the award passed by the II
Additional Labour Court, Chennai in I.D.No.339 of 1996.
By the impugned award, the Labour Court dismissed the I.D., by holding that it was not inclined to grant any relief to the workmen viz.,
P.L.Lourduswamy, for whom the dispute was raised.
The Writ Petition was admitted on 18.04.2007. However, when the matter came up on 16.11.2011, this Court directed the matter to refer the
resolution of dispute by the Lok Adalat. But, however, the Lok Adalat returned the reference by stating that the parties were not willing to settle
the dispute.
On notice from this Court, the first respondent had filed a counter affidavit dated 21.12.2011. The facts leading to the dispute are as follows:-
The workman P.L.Lourduswamy was working in the first respondent Mill from 1961 onwards. He was posted as a Store Clerk. While he was
working in third shirt on 14.05.1978, certain irregularities were found with reference to cement bags kept in the godown. This led to an enquiry
being held against the said P.L.Lourduswwamy. He was imposed with the penalty of reduction in rank from the post of Clerk III Grade to that of
IV Grade.
The penalty imposed on the said worker was taken up by the Madhurantagam Cooperative Sugar Mill Desiya Thozhilalar Sangam, Paladam as
an industrial dispute u/s 2(k) of the Industrial Disputes Act, 1947. Subsequently, the matter was referred for adjudication by the State Government
in G.O.Ms.No.2007 Labour and Employment dated 27.08.1980. The said dispute was taken on file as I.D.No.352 of 1980 by the First
Additional Labour Court, Madras.
Before the Labour Court, P.L.Lurthusamy was examined as W.W.1 and two documents were marked as W-1 and W-2. On the side of the
Management, six documents were filed and marked as M.1 to M.6. Ex.M.1 was the charge sheet. Ex.M.4 was enquiry proceedings. Ex.M.5 was
a copy of findings given by the Enquiry Officer. Ex.M.6 was the order of penalty.
Before the Labour Court, the Management questioned the competency of the Union in raising the dispute and contended that the dispute did not
have substantial authorisation of the workman employed in the mill. That issue was dealt with as a preliminary issue by the Labour Court. The
Labour Court found that the Union was incompetent to deal with the issue and the reference was found to be incompetent. The Labour Court did
not stop with such a finding, but also went on to hold that there was no proper reference u/s 2(k) of the I.D.Act. It also went into the merits of the
case.
In the award, the Labour Court held that the enquiry held against the workman was valid and it does not call for any interference. Though the
Labour Court found that the enquiry was vitiated on account of non-compliance of the bye-laws, it did not allow the management.
Aggrieved by the order of the First Additional Labour Court, the Trade Union filed a writ petition before this Court in W.P.No.927 of 1983
and challenged the said Award. The matter was posted before ae division bench headed by S.Nainar Sundaram, J. (as he then was). The division
bench held that there was no infirmity in the award passed by the Labour Court and they did not disturb the finding rendered by the Labour Court.
It was thereafter, once again the dispute was raised by the Madhuranthakam Cooperative Sugar Mills Desiya Thozhilalar Sangam on behalf of the
workman.
The said dispute was again referred for adjudication by the State Government by G.O.(D).No.557, Labour and Employment Department
dated 28.06.1996. The said dispute was taken on file as I.D.No.339 of 1996 by the II Additional Labour Court, Chennai. The issues that were
referred for adjudication was three in number. The first issue was whether the suspension from 17.05.1978 to 07.07.1978 made against
P.L.Lourdusamy was justified. The second issue was whether the reduction of Grade from the post of Clerk, Grade III to Clerk, Grade IV was
justified. The third issue was whether the management was right in recovering a sum of Rs.3,276.34 towards the loss of 7 bags of stolen cement
bags was justified.
The petitioner Union filed a claim statement dated 21.09.1996. On notice from the Labour Court, the first respondent Sugar Mill filed a
counter statement on 22.07.1998. Before the Labour Court, once again, on behalf of the Union, one R.Venkatesan was examined as W.W.1 and
the workman P.L.Lurdusamy was examined as W.W.2. On the side of the worker, 11 documents were filed and marked as Ex.W.1 to Ex.W.11.
Since the union itself has filed the enquiry proceedings, the Management did not file separately any document.
The Labour Court upon these materials came to the conclusion that the said Lurdusamy was the sole in-charge of the godown at the time of
theft. Therefore, any goods, which are missed during that period, he was solely responsible. After going into the proceedings submitted, the Labour
Court in paragraph 9 held that the workman was completely in-charge of the godown. Therefore, he was solely responsible for the loss caused
during the time of his shift. It also referred to Ex.W.9, wherein, the workman also admitted his lapse in not preventing the theft. The Labour Court
also referred to the extract from Ex.W.9 in paragraph 10, wherein, the loss has been admitted by the workman. Though the contention was raised
that no second show cause notice was issued after the domestic enquiry held, the Labour Court held that only on the said ground, the enquiry
cannot be said to be vitiated. On the question of double jeopardy, the Labour Court held that such a concept cannot be applied to the case on
hand. The recovery was only to the extent of loss. It was different from penalty imposed for a specific misconduct of negligence. Therefore, it
rejected the workman''s contention on the said ground. It was on those circumstances, by the impugned award, the Labour Court dismissed the
reference. Challenging the same, the writ petition was filed as noted already
The Labour Court also held that it is only a reversion to a lower post, it did not call for any interference. In fact, u/s 11-A of the Industrial
Disputes Act, 1947, the power of the Labour Court to interfere with penalty is only available in case of dismissal or discharge. Therefore, the
Labour Court was not persuaded to interfere with the penalty and held that punishment was in accordance with law and not disproportionate.
In the affidavit filed in support of the writ petition, it is stated that the Labour Court failed to analyse the materials produced before it. It is
further stated that the Labour Court had wrongly relied on the statement of workmen that he admitted the charge made during the cross
examination by the Enquiry Officer which was not correct. It is also stated that the Labour Court itself has clearly held that the first respondent has
violated the provisions of 20(1) of their bye laws while imposing the punishment and in the earlier occasion, the industrial dispute was dismissed
only on technical ground of not supported by the substantial section of workmen. It cannot be said that it is a minor penalty. The Labour Court also
relied upon the judgment reported in1984(1)L.L.N. Page 607 on the ground that no prejudice was caused by non-issuance of second show cause
notice. The Labour Court also failed to take into account the fact that the workman was made to work all the three shifts in a particular day, during
which, the theft had taken place.
In the counter affidavit filed by the Special Government Pleader, it is stated that the workman was in-charge of the factory stores between 4.00
p.m., and 12 midnight on 14.05.1978 and from 12.00 midnight to 8.00 a.m., shift on 15.05.1978, during which period, the cement bags were
unloaded from the godown under his supervision. The deficit of cement bags were noticed after the last lorry was unloaded. Certainly, the
workman cannot express ignorance regarding unloading of cement bags. During enquiry, he was given full opportunity of defending himself. He
was given punishment only to the lower grade. Besides recovery of Rs.3276.34 was towards the cost of cement bags found shortage.
It is now brought to the notice of this Court by Ms.G.Thilakavathi, learned counsel for the first respondent that subsequent to the events, sugar
mill itself was closed and due to rehabilitation measures taken by the Government, it has been now reopened and some of the employees, who did
not go on voluntary retirement and who were having sufficient tenure were reemployed. She has also stated that the allegation that double jeopardy
would not apply to the case on hand.
The only question that has to be decided is as to whether the impugned Award calls for any interference by this Court. In the present case, the
technical ground raised by the petitioner that non-issuance of memo after enquiry proceedings will vitiate the enquiry is not acceptable. The
Supreme Court in the case of Managing Director, Electronic Corporation of India Vs. B. Karunakar, has held that the workman will have to
establish that prejudice was caused due to non-issuance of notice. It cannot be said that after two rounds of litigation, that prejudice was caused by
the non-issuance of notice. If that ground is taken away, the only ground that stands in the case is whether penalty imposed on the workman was
justified. As already held by the Labour Court, that it is not the case where discretion can be exercised as the Labour Court do not have power u/s
11-A of the I.D.Act to interfere with the penalty. The recovery of amount was towards the loss caused to the sugar mills and therefore, merely
because the State Government made three distinct issues for adjudication by the Labour Court, it need not be answered. Suspension of the
petitioner arose because of the enquiry into the charges were to be made and subsequently, imposition of penalty on the workman was due to the
loss caused to the sugar mill. It cannot be said that the said penalty imposed on the petitioner is disproportionate to the gravity of charges. Further,
the question of double jeopardy does not arise in this case as the recovery was towards the loss sustained by the Mill.
In view of the above, no case is made out to interfere with the Award. Accordingly, the writ petition stands dismissed. No costs.