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Judgment
D. Hari Paranthaman, J.—Questioning the award passed by the first respondent Labour Court dated 23.01.2007 in I.D. No.494 of 1992, the petitioner has filed this writ petition.
2(i). The writ petitioner is the management and the second respondent was the workman employed by them.
2(ii). The petitioner gave a charge sheet dated 25.09.1990 to the second respondent alleging that on 24.09.1990 during first shift, he threatened the Supervisor Thiru.Mohan with regard to the allocation of work to him, when the Supervisor Thiru.Mohan was going home at 3.30 pm. It was alleged that the workman identified the said Mohan near Palavanthangal Railway Station to another person. Thereafter, on 25.09.1990 at about 5.20 a.m., at the Palavanthangal Railway Station, Thiru.Mohan was attacked by five persons including the person, to whom Thiru.Mohan was identified by the workman. While attacking Thiru.Mohan, the attackers uttered the words that Thiru.Mohan should behave properly in the factory. According to the charge sheet, the workman was responsible for the aforesaid attack.
2(iii). The workman denied the charges. He pleaded innocence in his explanation that he did not know anything about the attack and he categorically asserted that he did not identify Thiru.Mohan to any third person, as alleged in the charge sheet.
2(iv). Thereafter, an enquiry was held. In the enquiry, apart from Thiru.Mohan, three persons, namely, Thiru.Murugan, Thiru.Leeladhar and Thiru.C.K. Gopal were examined by the petitioner. The workman examined two witnesses. The Enquiry officer ultimately held that the charges were proved based on the findings of the Enquiry. The workman was dismissed from service by an order dated 04.10.1991 on the allegation that he was responsible for the assault on the supervisor Thiru.Mohan on 25.09.1990 at 5.20 a.m. at Palavanthangal Railway Station.
2(v). Admittedly, Thiru.Murugan, Thiru.Leeladhar and Thiru.C.K. Gopal were not eye-witnesses/direct witnesses to the incident. They were all Supervisors working along with Thiru.Mohan.
3(i). The workman took up the non-employment before the first respondent Labour Court in I.D. No.494 of 1992. Both the parties filed pleadings before the Labour court. The workman questioned the fairness of the enquiry. The Labour Court passed the preliminary award holding that the enquiry was held in a fair manner. Thereafter, both sides were heard under Section 11-A of the Industrial Disputes Act, 1947 (shortly ''the I.D. Act''). The Labour Court passed an award dated 01.12.1995 holding that the workman was entitled to monetary compensation of a sum of Rs.50,000/-, in view of the reinstatement.
3(ii). The said award was challenged by both the workman as well as the management.
3(iii). By a common order, the award was set aside by this Court and the matter was remanded back to the Labour Court to hear the dispute afresh under Section 11-A of the I.D. Act and to decide the matter on merits.
3(iv). Accordingly, after the remand, the Labour Court heard both the parties and passed the award dated 23.01.2007 in I.D. No.494 of 1992 holding that the non-employment was not justified and ordered reinstatement with continuity of service, back wages and other attendant benefits.
3(v). The petitioner management has filed this writ petition to quash the aforesaid award.
The learned counsel for the petitioner management has vehemently contended that the award of the Labour Court has to be interfered with and the sole evidence of Mohan is sufficient to hold the charges as proved. He has also contended that the Labour Court cannot act like a criminal court, while dealing with the matter and the Labour Court ought not to have interfered with the finding of the Enquiry Officer, that was accepted by the disciplinary authority.
On the other hand, the learned counsel for the second respondent/workman has contended that the Labour Court has power under Section 11A of the I.D. Act to re-appreciate the evidence and come to a different conclusion as an appellate authority. He has submitted that introduction of Section 11A to the I.D. Act has made a vast change clothing power to Labour Court to act as an appellate authority and now the Labour Court has power to re-appreciate the evidence that was let-in before the enquiry and to come to a different conclusion from that of the Enquiry Officer and the Disciplinary Authority, by giving reasons. He has taken me through certain passages of the award, particularly, paragraphs 8 to 10 of the award, and has submitted that no interference is called for by this Court in the impugned award. He has submitted that since the workman is shortly reaching the age of superannuation on 31.08.2015, no useful purpose would be served in the order of reinstatement. He has further submitted that the workman has got tired of litigation and therefore, he could not be driven to the Labour Court again under Section 33C(2) of the I.D. Act for determination of back wages, if this Court confirms the award and he is willing to forgo even substantial portion of back wages for immediate payment of the back wages. He has prayed that a suitable order may be passed modifying the award on the basis of his submission. He has further submitted that since the direction to pay the amount to the workmen, if his submission is accepted, would be towards back wages for more than two decades, there is no need to deduct income tax therefrom.
I have carefully considered the submissions made by both sides.
As rightly contended by the learned counsel for the second respondent/workman, now the Labour Court has power under Section 11A of the I.D. Act to re-appreciate the evidence as an appellate authority and come to a different conclusion from that of the Enquiry Officer and the Disciplinary Authority. Such a power was not available before the introduction of Section 11A to the I.D. Act in the year 1971.
While passing the impugned award, the Labour Court exercised its power under Section 11A of the I.D. Act by analysing the evidence as an appellate authority and recorded its findings that the charges against the workman were not made out in the enquiry. The Labour Court categorically held that the finding of the Enquiry Officer holding that the charges were proved was solely based on suspicion and suspicion can never take the place of proof.
The Labour Court gave coherent reasoning for its conclusion. The Labour Court took note of the fact that while Thiru.Mohan stated in the complaint Ex.M.25 that he was attacked by the persons by repeatedly telling that he should behave properly on the second respondent/workman in the factory, Thiru.Mohan did not say so to Thiru.Murugan, while it was the case of the management that Thiru.Murugan alone took Thiru.Mohan to make a telephone call in the factory. Further, the evidence of Leeladhar was also considered and the same related to giving of low output by the workman five days prior to the incident. The Labour Court opined that the same has no bearing on the incident that took place against Thiru.Mohan. The Labour Court also came to the conclusion, based on the evidence of Thiru.Mohan, that it was only his suspicion that the workman could have involved in the attack. The Labour Court, as stated above, recorded a finding that suspicion cannot take place of proof even in the domestic enquiry.
The Labour Court further held that though the workman asked for providing of the alleged police complaint said to have been made by Thiru.Mohan, no copy of the complaint was produced in the domestic enquiry.
In those circumstances, the Labour Court recorded the finding that the charges were not proved by acceptable evidence in the enquiry and therefore, the dismissal order passed by the petitioner was liable to be set aside. In view of such conclusion, the Labour Court ordered reinstatement with continuity of service and ordered attendant benefits.
At this juncture, It is useful to refer the following passage in paragraph 8 as well as paragraphs 9 and 10 of the award:
"8)...... Bearing the above proposition in mind let me analyse the evidence adduced before the enquiry office as well as before this Court to arrive at a conclusion, whether the charge levelled against the petitioner has been proved. According to the management, the petitioner identified the Supervisor Mr. Mohan near Palavanthangal Railway Station to a third person at 3.30 p.m. on 24.09.90 and on the next day early morning when Mr. Mohan was on his way to his office he was attacked by 5 persons including the person to whom the petitioner identified Mr. Mohan. There is no dispute that Mr. Mohan was injured by 5 persons near Palavanthangal Railway Station when he was on his way to his office. The victim Mohan was examined on the side of the management as one of the witnesses during domestic enquiry and he spoke about the incident and also the fact that the petitioner identified him to a person on the previous day to the incident. There is no other ocular evidence. The evidence of Mr. Mohan that the petitioner identified him to a third person on the previous day is not believable for the following reasons :
1) In the complaint given to the management on the date of occurrence, i.e., 25.9.90 Ex.M.25 it is stated that he was attacked by the persons by saying repeatedly that he should behave properly with Vijayakumar in the factory. But he has not stated so to Mr. Murugan who was also examined as witness on the side of the management in the domestic enquiry who only took Mohan to the office to make a telephone call in the factory.
2) Though Mr. Mohan asserted that he lodged a complaint before the police, he has not produced the copy of the same inspite of the demand of the same by the petitioner during domestic enquiry. Non production of the copy of the complaint given to the police probabilise that the petitioner tries to insert new facts suppressing the truth. In other words, the management failed to file the copy of the police complaint as the same does not implicate the petitioner herein.
3) Though Mr. Mohan stated before the enquiry officer confirming his complaint that the petitioner identified him to a third person on the previous day to the incident, he informed Murugan on reaching the factory immediately after the incident that he suspected the petitioner''s hand in the attack. It is stated in para 6 of the counter as follows:
"At that time itself V.Mohan told M.Murugan that he was suspecting the petitioner to be behind the attack on him in the railway station."
Thus, it is clear from the evidence that M.Mohan suspected the petitioner and gave a complaint to the management against him. Suspicion cannot be allowed to take the place of proof even in the domestic enquiry. Therefore the evidence of P.W.1 before the enquiry officer is not acceptable.
9) The learned counsel for the respondent contends that the finding of the enquiry officer is based on circumstantial evidence and the conduct of the petitioner prior to the occurrence as well as after the occurrence probables, the involvement of the petitioner. The conduct of the petitioner prior to the occurrence is that from 18.9.90 to 20.9.90 he behaved rudely towards the Supervisor Mr.V.Mohan and the Foreman Mr. Leeladhar and gave only low output even after taking him to the Personnel Manager. The management witnesses before the domestic enquiry have spoken in this regard. The petitioner himself admits in his explanation Ex.M.39 that his superior Mr.B.Leeladhar questioned him stating that he was not giving normal output and when he had been taken to the Personnel Manager on 19.9.90, he reiterated that he was giving normal output. Mr. Leeladhar examined on the side of the management in the domestic enquiry states that the petitioner misbehaved with him on 20.9.90, but he immediately apologized at the instance of his co-worker one Kumaravel. The petitioner continued to work after apologizing and therefore it cannot be said that after about 5 days the Supervisor Mr. Mohan was attacked at his instigation.
10) Murugan and Gopal examined on the side of the management in the domestic enquiry stated that the petitioner enquired about the incident and about the persons involved with them. The petitioner also belongs to the same locality where Mr. Mohan lives and he even used to bring leave letters of Mohan to the company and they were very friendly as per evidence. Therefore, enquiry about the incident with some enthusiasm cannot be a circumstances to implicate the petitioner with the incident. Instead it is also suspicion which led the enquiry officer to give a finding against the petitioner. Therefore, the finding of the enquiry officer is based mainly on the suspicion and not on the basis of evidence having some degree of definiteness. For the aforesaid reasons, this Court holds that the charges against the petitioner has not been proved."
The Labour Court has thus given its detailed reasons for its conclusions and has categorically recorded that the findings of the Enquiry officer was based on suspicion and suspicion cannot take the place of proof even in the domestic enquiry. I am of the view that the findings of the Labour court cannot be faulted with and no one can come to the conclusion that the findings of the Labour Court are perverse.
While the Labour Court has power under Section 11A of the I.D. Act as an appellate authority to re-appreciate the evidence, this Court, while exercising power under Article 226 of the Constitution, has a limited power in interfering with the award of the Labour Court under its extraordinary jurisdiction, as held by the Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, , which has in turn followed its earlier decision in Syed Yakoob Vs. K.S. Radhakrishnan and Others, on the jurisdiction of this Court under Article 226 of the Constitution of India, in para 12 of the judgment. Para 12 of the said judgment is extracted hereunder:
"12.In Syed Yakoob''s case, this Court delineated the scope of the writ of certiorari in the following words:
"7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, and Kaushalya Devi and Others Vs. Bachittar Singh and Others, ."
By applying the aforesaid principle, I am of the view that there is no infirmity in the award of the Labour Court.
Now it is admitted by both the parties that the workman will be reaching the age of superannuation in August 2015. The learned counsel for the workman has submitted that the workman has to render only a short span of service and therefore, the management could be directed to pay some portion of the back wages, as he is tired of litigation for more than two decades and he is prepared to forgo a substantial portion of the back wages, if he is not again driven to Labour Court for computation or to face the Division Bench.
In those circumstances, I directed the parties to state about the back wages payable to the workman as on today. It is submitted by the learned counsel for the management that the workman/second respondent is entitled to a sum of Rs.35,00,000/- as back wages till date and it is also submitted that the petitioner has been getting wages under Section 17-B of the I.D. Act.
Taking into account, the entirety of the facts of the case, I am of the view, in the interest of justice, that the award could be modified by directing the petitioner management to pay 50% of the back wages amount, i.e., Rs.17,50,000/-, in lieu of reinstatement and all other claims and the petitioner could deduct the 17-B wages from the amount of Rs.17,50,000/-. That is, while making payment to the workman, the management could adjust the wages paid to the workman under Section 17-B of the I.D. Act, during the pendency of the writ petition.
The learned counsel for the petitioner management has also submitted that a direction could be issued permitting the workman to withdraw the deposited amount, that is lying with the Labour Court to the credit of I.D. No.494 of 1992, pursuant to the interim order of this Court along with interest accrued thereon, and the deposited amount only could be adjusted towards the payment of Rs.17,50,000/-. The learned counsel for the workman has no quarrel over the same. Thus, it is also made clear that apart from adjusting the wages paid to the workman under Section 17-B of the I.D. Act in Rs.17,50,000/-, the petitioner shall also adjust the amount, that was deposited in the Labour Court pursuant to the interim order of this Court, and the writ petitioner management shall pay the balance amount to the workman, as directed above, within a period of two weeks from the date of receipt of a copy of this order.
19.Besides the above said amount, the workman is entitled to get the Provident Fund Accumulations, that is available in his credit, till the date of dismissal and he is not entitled to any benefits thereafter towards Provident Fund or any other dues except the amount, as stated above.
In respect of the submission of the learned counsel for the workman that the petitioner need not deduct TDS, I am of the view that the management could deduct TDS, but the workman is entitled to claim relief under Section 89 of the Income Tax Act, as per the judgment of the Apex Court in Sundaram Motors Pvt. Ltd. Vs. Ameerjan and Another, . The Apex Court, in an identical situation, as held, as follows, in para 4 of the said judgment :
"4. We have made it abundantly clear in our judgment and order dated August 7, 1984 that the compensation awarded is in lieu of back wages, and future wages in lieu of reinstatement which were and would be payable from year to year. Therefore, we made it very clear that the entire amount awarded by our judgment shall be spread over from 1970 to 1989, 1970 being the year of dismissal from service and 1989 being the year of retirement on superannuation as per the relevant service rules. We are accordingly clear in our minds that viewed from any angle, respondent-Ameerjan, the workman is fully entitled to the relief under Section 89 of the Income Tax Act. No other view on this point is possible. In order to satisfy the requirements of law, the respondent-Ameerjan shall with the assistance of the appellant and its income-tax consultants make the necessary application to the Income Tax Officer having jurisdiction in the matter at Bangalore for relief under Section 89 and the officer concerned shall, without further enquiry, grant him immediate relief under Section 89 and dispose of the proceedings within a period of three months from the date of the application so that the spirit and purpose of our judgment and order would be implemented without unnecessary delay and the agony and torture of unemployment heaped upon the lowly paid respondent Ameerjan from 1970 be relieved."
In my view, the direction issued by the Supreme Court in the aforesaid judgment squarely applies to this case. Hence, the Income Tax authorities are directed to pass appropriate order, as and when an application is filed by the workman claiming relief under Section 89 of the Income Tax Act, in terms of the judgment of the Supreme Court, referred to above, within a period of three months from the date of receipt of such application.
At this juncture, the learned counsel for the petitioner Management has stated that the petitioner Management will cooperate in the endeavour of the workman in filing the application under Section 89 of the Income Tax Act and all other necessary matters in this regard so as to get the refund of the deducted TDS amount.
With the above modification in the Award, this writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are also closed.