Udumbanchola Estate Workers Union vs Indian Cardamom Research Institute

J.B. Koshy, J.—Petitioner is challenging Ext.P7 Award of the Industrial Tribunal, Alappuzha. One Cherian Mathew (hereinafter referred to as the "Workman") represented by the petitioner union was engaged in the 1st respondent management which is a Research Institute. His regular duty hours started from 5 pm. On December 6, 1986, he reported only at 6.45 pm and his superior officer, Assistant Director of the establishment, asked reason for the same. On hearing the same, workman shouted at him in a very abusive language and threatened him. Again, on the next day, while his superior was waiting for bus in the waiting shed in front of I.C.R.I., the workman came there and abused him in foul language and threatened him. It continued for half-an-hour till he boarded a bus. In pursuance of the charges, a domestic enquiry was conducted. The workman participated initially and thereafter boycotted the enquiry. Enquiry Officer found him guilty of the charges levelled against him. Considering the nature and seriousness of the charges, the workman was dismissed from service. His dismissal was referred for adjudication.

All the contentions raised by the workman were considered by the Tribunal. It was found that the enquiry was conducted in accordance with the principles of natural justice. The workman boycotted the enquiry for no valid reasons. Complaint of the petitioner is that Enquiry Officer has made an application for adjournment on behalf of the management in a Labour Court case when management''s advocate was unable to be present in the Court for sometime and he was present in the Court for some cases. This sort of representation is being done by many Advocates. But, that is not a reason for bias. Enquiry officer was not a legal adviser to the management and management never engaged him in any matter previously. In any case, no proof was adduced also. A Division Bench of this Court in Writ Appeal No. 835/1986 relying on the decisions of the Supreme Court reported in Saran Motors (P) Ltd. v. Viswanath and Anr. 1964 II LLJ 139) andd Dalmia Dadri Cement, Ltd. Vs. Shri Murari Lal Bikaneria, held that it is too late in the day to contend that because a person is sometimes employed by the employer as a lawyer, he is thereby rendered incompetent to act as an enquiry officer. ( N.J. Joseph Vs. Labour Court, . In this case, enquiry officer was never engaged as a lawyer for the management in any case. Tribunal considered the question in detail in the preliminary order and on facts correctly found that there is no substance in the allegation that enquiry officer was biased. The relevant portions of the preliminary order are extracted in Ext. P7 award. I see no reason to differ from those findings and conclusions. In fact, workman was allowed to be represented by an Advocate in the enquiry. After cross-examining the witnesses in the enquiry only he boycotted the enquiry for no valid reasons. He had to thank himself tor the situation. It is also seen that after the boycott enquiry was adjourned and again opportunity was given to the workman to appear in the enquiry.

Second contention is that petitioner is a protected workman and no prior permission as envisaged in Section 33(3) of the I.D. Act was obtained before dismissing him. All trade union officials are not protected workmen. Only those workmen who are recognized as protected workmen as per Section 33(4) can claim protection u/s 33(3). Workman did not prove that he is recognized as protected workman as mentioned in Section 33(4). He had no case that he was recognised as protected workman as per Rule 62 of the Industrial Disputes Rules. Tribunal considered this plea properly and found against the petitioner in Paragraphs 8 to 12 of the Award. I concur with the above findings.

Even if the concerned workman was a protected workman merely because the employer fails to file an application u/s 33(3) while imposing punishment of dismissal, it will not per se make the dismissal void. The remedy in such case is provided in Section 33A. Workman will get a right to treat his complaint u/s 33A as an industrial dispute, if it is proved that there was violation of Section 33 without the procedure in obtaining the reference. Here, in an industrial dispute referred, Tribunal has found that dismissal was fully justified after exercising the jurisdiction u/s 11A. Effect of non compliance of Section 33 of the I.D. Act is different from the adverse order rejecting the application u/s 33 which makes the punishment order invalid. In Punjab Beverages Pvt. Ltd, v. Suresh Chand (1978-II- LLJ-1) it was held by the Supreme Court as follows at pp.8-9:

"It will, therefore, be seen that the first issue which is required to be decided in a complaint filed by an aggrieved workman u/s 33A is whether the order of discharge or dismissal made by the employer is in contravention of Section 33. The foundation of the complaint u/s 33A is contravention of Section 33 and if the workman is unable to show that the employer has contravened Section 33 in making the order of discharge or dismissal the complaint would be liable to be rejected. But, if the contravention of Section 33 is established, the next question would be whether the order of discharge or dismissal passed by the employer is justified on merits. The Tribunal would have to go into this question and decide whether, on the merits, the order of discharge or dismissal passed by the employer is justified and if it is, the Tribunal would sustain order, treating the breach of Section 33 as a mere technical breach. Since in such a case, the original order of discharge or dismissal would stand justified, it would not be open to the Tribunal, unless there are compelling circumstances, to make any substantial order of compensation in favour of the workman. In fact in Equitable Coal Company''s case an order of compensation made by the Tribunal in favour of the workman was reversed by this Court. The Tribunal would have to consider all the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the circumstances of the case. But this much is clear that mere contravention of Section 33 by the employer will not entitle the workman to an order of reinstatement, because inquiry u/s 33A is not confined only to the determination of the question as to whether the employer has contravened Section 33, but even if such contravention is proved, the Tribunal has to go further and deal also with the merits of the order of discharge or dismissal."

From this, it follows, that order of discharge or dismissal can only be annulled by the Tribunal in adjudicatory proceedings either on a proceeding u/s 10 or on a complaint u/s 33A or in a proceeding u/s 33. So long as the order of discharge or dismissal is not so annulled it will not become void for the alleged violation of Section 33 in not filing an application for approval or permission as the case: may be. It was held in Punjab National Bank Ltd. v. Their Workmen (1959-II-LLJ-666) (SC) that in Section 33A proceedings contravention of Section 33 should be proved first. Only when such contravention is proved, application u/s 33 will lie. But, it will still be open to the employer to justify the dismissal on merits. In other words, mere contravention of Section 33 will not make the dismissal void.

Another argument raised by the petitioner is that the allegation that on December 7, 1986, he abused his supervisor in public road at the waiting shed is not a misconduct as it happened outside the premises of the establishment and it is not during his working hours.

Petitioner relied on the decision of the Supreme Court in Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, and argued that the employer has hardly any extra territorial jurisdiction. He is not the custodian of general law and the power of employer is only to regulate the behaviour of the workmen during duty hours. The Supreme Court was considering the question when workmen were charge sheeted for an offence committed "within the premise of the establishment or in the vicinity thereof". Supreme Court was interpreting the meaning of the above provision in the Standing Orders. Here, such a provision was not involved while charge-sheeting. In Tata Oil Mills Co. Ltd. Vs. Its Workmen, though the Court reiterated that it would be unreasonable to include within the relevant standing order any riotous behaviour "outside the factory" which was the result of a purely private and individual dispute, it evolved the rule to bring certain acts of misconduct of riotous and disorderly behaviour within the ambit of the relevant standing order, that the management should show that the disorderly or riotous behaviour had some "rational connection" with the employment of the assailant and the victim. In that case, two workmen were dismissed for the misconduct of way-laying and assaulting the charge man of the soap plant of the company''s factory at Tatapuram while he was returning home after his duty in the second shift near Ernakulam market. The Court had held that it was quite clear that the assault committed by the delinquent workman was not a purely private or individual matter as it was committed because the assaulted workman was supporting the plan of the company for more production. The assault, therefore, was committed with the motive to terrorise the workman against supporting the company''s incentive plan for more production, was an act subversive of discipline. In Mulchandani Electrical and Radio Industries Ltd. Vs. The Workmen, the relevant standing order provided that the commission of any "act subversive of discipline or good behaviour within the premises or precincts of the establishment" would constitute an act of misconduct. In that case, the delinquent workman was dismissed from service for assaulting his superior officer in the train on his way from the factory to his house after day''s work. On behalf of the workman it was contended before the Supreme Court that the alleged assault having taken place in the train which was obviously outside the "premises or precincts" of the establishment was not covered by the relevant standing order. The Supreme Court held that on a plain reading of the expression "within the premises or precincts of the establishment" refers not to the place where the act subversive of discipline of good behaviour is committed but where the consequence of such an act manifests itself. In other words, an act wherever committed, if it has the effect of subverting discipline or good behaviour within the precincts of the establishment, will amount to misconduct. The Court rejected the contention that the standing order leaves out of its scope an act committed outside though it may result in subversion of discipline or good behaviour within the premises or precincts of the establishment in question as such a construction would be quite unreasonable. Supreme Court held that if there is real and substantial linkage between the alleged mis-conduct, action can be taken by the management. What constitutes a misconduct of acts subversive of discipline would depend upon the circumstances of each case. It may be noted that in this case, the workman abused the supervisor on December 6, 1986 when he was asked why he was late. Thereafter, as a consequence of the very same incident, without any further provocation, he abused the supervisor on December 7, 1986 also. Merely because it has happened outside the premises of the establishment it cannot be stated that it is not a misconduct at all Supreme Court in Palghat BPL and PSP Thozhilali Union Vs. BPL India Ltd. and Another, held as follows:

"...........Any act subversive of discipline committed outside the premises is also misconduct. Any act unrelatable to the service committed outside the factory would not amount to misconduct. But, when misconduct vis-a-vis the officers of the management is committed outside the factory, certainly the same would be an act subversive of discipline. The object appears to be that workmen need to maintain discipline vis-a-vis its management. What amount of misconduct is a question of fact. It would be decided with reference to the facts, the situation in which the act was alleged to have been committed and the attending circumstances leading thereto."

Tribunal correctly found that the action of the petitioner on the facts of the case is an act subversive of discipline.

It is not disputed that if the evidence in the enquiry alone is taken, there is no doubt that finding of the enquiry officer is correct. Perhaps it may be because after cross-examination of the two witnesses, the workman boycotted the enquiry. There was no cross-examination of other witnesses and his defence was also not proved. Even thereafter he was allowed to be represented by an advocate and all principles of natural justice were complied with. He did not avail that opportunity. It is argued by the learned advocate for the management that he boycotted the enquiry after cross-examination of witnesses in the enquiry because he himself was convinced that he will not be able to prove his defence as management has produced cogent evidence. Whatever may be the circumstances, on the basis of the evidence in the enquiry, workman was found guilty and the above finding is proper on the basis of evidence adduced in a properly constituted domestic enquiry held in accordance with the principles of natural justice. Tribunal also found that findings of the enquiry officer are correct. The above finding that the workman was guilty of the misconducts alleged against him cannot be disturbed in this writ petition on any of the grounds pleaded.

A contention is raised here that Tribunal did not reappraise the evidence in the enquiry as held by the Supreme Court in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, After considering the enquiry proceedings, Tribunal agreed with the finding of the enquiry officer. When Tribunal agrees with the enquiry officer, there is no necessity for repeating the evidence and conclusion by the Tribunal even though Tribunal can differ from the findings of enquiry officer in a properly conducted enquiry on cogent reasons as held in para 50 of Firestone''s case. Here, Tribunal agreed with the findings of the enquiry officer. In paragraphs 12 and 14 of Ext.P7 award also there is a detailed consideration of the misconducts and evidence in the enquiry. Tribunal also considered the admission made by the workman in Exts.M11 and M12 and that is a detailed consideration. There was admission and the Tribunal has passed the Award on the basis of pleadings raised.

Next ground argued was that in the dismissal order it is stated that his antecedents were also bad. Therefore, he is dismissed not only for misconducts now proved but for other charges also for which he was not given notice. It was also argued that Tribunal also committed the same mistake when jurisdiction u/s 11A was exercised. This ground is very attractive. But, on going through the dismissal order it can be seen that he was dismissed for misconducts proved in the domestic enquiry. It was found that misconducts proved warrant punishment of dismissal. Management thereafter considered whether there are any circumstances existing for imposing a lesser punishment. Since antecedents were also bad, it was decided that no leniency is required. Tribunal also did the same thing. After finding that misconduct is proved in a properly conducted domestic enquiry and punishment is justified, Tribunal considered whether any relief is to be granted on the ground of his clean past service. Workman himself has no case even before the Tribunal that his past service record was clean and statement in the dismissal order regarding his antecedents were bad and factually wrong. Past record of service is one of the relevant factors to be considered by the Tribunal while exercising jurisdiction u/s 11A and moulding relief. I see no infirmity in the above procedure.

It was also argued that dismissal order is bad because finding of the enquiry officer was not given to him. Such a contention was not raised before the Tribunal. Further, copy of the proceedings and findings of the enquiry officer were produced in the Tribunal with copy to the Union. It was found after elaborate consideration that enquiry was valid and findings are justified. In the above circumstances, no prejudice is caused to him and on that ground punishment cannot be set aside. The punishment was imposed in 1987. Operation of Union of India and others Vs. Mohd. Ramzan Khan, for furnishing enquiry report was prospective, that is from November 20, 1990. Therefore, as held in the decision reported in State of Karnataka and Others Vs. V.B. Hiregowdar, merely because enquiry report was not furnished before punishment was imposed will not vitiate the punishment. In this case, the punishment was imposed before November 20, 1990. Apart from the above in S.K. Singh Vs. Central Bank of India and Others, it was held that order of punishment cannot be interfered with for non-supply of enquiry report if no prejudice is caused due to such non-supply of enquiry report. In this case, no contention is raised that any prejudice is caused because of non-supply of enquiry report. In cases where Section 11A is applicable when the Tribunal finds that the procedure adopted is correct and findings of the enquiry officer are also correct after supply of copy of enquiry proceedings and report to the workman, it will be very difficult to prove that any prejudice is caused by non-supply of enquiry report before punishment.

In State Bank of Patiala & Ors. v. S.K. Sharma also it was held that unless it is proved that prejudice is caused it cannot be stated that there is violation of the principles of natural justice. In this case, after going through the proceedings and after hearing the petitioner it was found by the Tribunal that misconducts alleged against the petitioner were properly proved in the domestic enquiry. There were evidences against the workman.

Last point argued was that Tribunal went wrong in taking a lenient view u/s 11A of the Industrial Disputes Act. The punishment of dismissal was so hard and disproportionate to the misconduct committed. Petitioner also relied on the decision in Ved Prakash v. Delta India Ltd. and argued that for mere abuse punishment of dismissal cannot be imposed. In this case, Assistant Director of the establishment was abused in vulgar language and threatened to be assaulted by him on December 6, 1996. Next day on December 7, 1996 also he was threatened and abused. The vulgar language used by him was repeated in para 3 of the award. Unlike the case in Ved Prakash''s case where abuse was made at the spur of the moment, that too, by a workman with past clean service, here is a workman who not only abused and threatened the Assistant Director during office hours on December 6, 1986, but abused the Assistant Director in public road on the next day with most vulgar abusive language. The nature of language used against the Assistant Director mentioned in para 4 of the award is really shocking. Retention of such an employee in the establishment will not be conducive to industrial peace and morale of supervisory staff. His past conduct was also considered by the Tribunal correctly while moulding the relief. The Tribunal correctly exercised the jurisdiction vested in him u/s 11A of the Act and found that in this case workman deserved no sympathy. I see no infirmity in the award.

Industrial Tribunal, Alappuzha has correctly considered the matter and came to the right conclusion in a well considered award. For valid reasons, it was held that the enquiry was fair and proper. Thereafter, Tribunal has considered the seriousness of the charges and found that the dismissal was justified. Jurisdiction u/s 11A of the Industrial Disputes Act was also exercised properly and found that considering the nature of the misconducts dismissal is justified. I see no jurisdictional error or error apparent on the face of the record in the Award. Therefore, the O.P. is dismissed.