| |||||||
IMPORTANT ISSUES/JUDGEMENTS ON LABOUR, HUMAN RIGHTS AND SOCIAL ASPECTS CAN BE ACCESSED IN THIS BLOG-P.ESAKKIMUTHU,CITU ON "LABOUR"
Wednesday, July 28, 2010
தொழிற்சங்கம்: ரகசிய வாக்கெடுப்பு முறைக்கு சட்டம் தேவை
Sunday, July 18, 2010
No case to dismiss employee after accepting fitness certificat-Justice K,Chandru
No case to dismiss employee after accepting fitness certificate: Court
Our Legal Correspondent
Chennai, July 16
An employee on sick leave who joins duty with fitness certificate could not be held by the employer medically unfit to discharge his duties, the Madras High Court has held.
If the employer had accepted the fitness certificate, then same sickness/ailment could not be said to be a ground to hold employee medically unfit to discharge his duties.
Setting aside the award dated December 26, 2000 of the Labour Court, Coimbatore declining to grant relief to the workman (Somasundaram), Mr Justice K. Chandru said that in this case, the question of remanding the dispute to the Labour Court was necessary only to decide the question of relief.
Citing a judgment of the Madras High Court in Mani Higher Secondary School vs Joint Director (Secondary) School Education, Madras (reported in 1989 1 LLJ 34), the Judge ruled the employer could not dismiss the employee on basis of medical unfitness. In that case, the findings of the Labour Court were not supported by legal evidence.
According to the Judge, in the present case, it was a clear case of violation of Section 25-F of the Industrial Disputes Act. Therefore, while setting aside the Labour Court's award, this Court was of the view that compensation in lieu of reinstatement could be granted to the petitioner.
The petitioner was employed by ABT Parcel Service, Coimbatore (R-2). He fell sick and took treatment as in-patient in the Department of Neuro Surgery at Thanjavur Government Medical College Hospital.
The management asked the petitioner to appear before a private doctor for medical examination. It was claimed that after the medical examination by the doctor, a report was sent to the management. The petitioner maintained that when he joined duty after discharge from Thanjavur Government Hospital with fitness certificate, which was accepted by the management, there was no necessity to refer his case to a private doctor.
On January 3, 1997, the management discharged the petitioner from service on the basis of the opinion of the private doctor.
The petitioner raised a dispute against his discharge, and filed a claim statement before the Labour Court.
The workman filed a writ petition and contended that the evidence of private doctor could not be accepted as final proof for his medical unfitness and that the opinion of the medical board should be accepted.
The Judge ruled that instead of driving parties to further litigation, this Court was of view that a lumpsum compensation should be fixed. Under the circumstances, a compensation of Rs 5 lakh was directed to be paid by management to petitioner. This order should be implemented by the management within eight weeks.
TRANSFER DISOBEDIENCE-NO ENQUIRY-VICTIMISATION-ILLEGAL
REPORTED IN 2010 I LLN 240)
Chennai High Court
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18-8-2009
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
WRIT PETITION NO.7879 OF 2001
The Management of Ultramarine and Pigments Ltd.,
25-B SIPCOT,
Ranipet. ... Petitioner
Vs.
1. The Presiding Officer,
Labour Court, Vellore.
2. R. Narasimhan ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the first respondent in I.D.No.431/94 and quash the award dated 4.1.2001.
For Petitioners : Mr.Ravi
for M/s.T.S.Gopalan & Co.,
1st Respondent : Labour Court
For 2nd Respondent : Mr.R.Rajaram
O R D E R
The prayer in this writ petition is to quash the award made in I.D.No.431 of 1994 dated 4.1.2001 on the file of the Labour Court, Vellore.
2. The case of the petitioner-management as could be seen from the affidavit in support of the writ petition are as follows:
(a) The second respondent was employed as Supervisor in the petitioner Soap Factory at Ranipet. During April, 1999, the management placed orders with the manufacturers at Mumbai for supply of certain machineries in connection with the expansion of the manufacturing activities at Ranipet. According to the petitioner, the second respondent was involved in various manufacturing activities in the factory and in order to ensure proper execution of the work order given to the manufacturer at Mumbai, and also to survey and inspect the machineries, the management decided to send competent technicians to Mumbai for certain period. (b) The second respondent and two others were found fit for the above job and on 2.8.1994 they were issued with orders deputing them to Mumbai. The second respondent was required to report before the petitioner's Mumbai office Manager on or before 8.8.1994. (c) It is claimed in the affidavit that the second respondent refused to accept the said order and sent a letter on 8.8.1994 by stating that he was working in the factory at Ranipet for the past seven years and as per the Model Standing Orders, there was no provision to transfer employees like him, who are paid consolidated salary and it is not possible for him to maintain his family at Ranipet, while staying at Mumbai and therefore he requested to post him at Rnipet itself. (d) The management sent a reply stating that as per clause 6 of the order of appointment, the second respondent is liable for transfer anywhere in India and the second respondent was sent for the purpose of inspection and survey the equipments and directed the second respondent to report at Mumbai. (e) Again, the second respondent sent a letter on 16.8.1994 and objected the said transfer and requested to permit him to work at Ranipet. On 20.8.1994, the management once again directed the second respondent to report at Mumbai, failing which he would be liable for disciplinary action. (f) The second respondent having not reported for duty at Mumbai, a show cause notice was issued on 23.8.1994, calling upon the second respondent as to why he should not be dismissed from service for his refusal to attend to work at Mumbai. The second respondent sent a reply on 29.8.1994 and reiterated his stand. As the second respondent refused to obey the transfer order, on 30.8.1994 he was discharged from service. The second respondent raised I.D.No.431 of 1994 before the first respondent by contending that he was victimised for his Trade Union activities and prayed for reinstatement with backwages and continuity of service. The management filed counter statement and denied the same.
3. Before the Labour Court, the second respondent examined himself as a witness and marked 26 exhibits on his side. On behalf of the management, the then Works Manager was examined as MW-1 and Exs.M-1 to M-53 were marked. The Labour Court, by award dated 4.1.2001, directed the petitioner management to reinstate the second respondent with backwages and continuity of service with cost of Rs.1,000/-.
4. The said award passed by the first respondent-Labour Court is challenged in this writ petition on the ground that the appointment order given to the second respondent empowers the management to transfer him and the second respondent having failed to obey the transfer order, he was discharged from service. It is also contended in the affidavit that transfer being an incidence of service and the management having discharged the second respondent for disobedience of the transfer order, the Labour Court was not justified in setting aside the said order and ordering reinstatement with all benefits.
5. The learned counsel for the management during the course of the arguments submitted that he is not pressing the first issue raised before the Labour Court with regard to the maintainability of the Industrial Dispute and the second respondent can be treated as a Workman as he was not having any managerial/administrative powers. The said submission made by the learned counsel for the management is recorded. Insofar as the other issue as to whether the second respondent can be transferred to any other place and the said transfer power having been vested with the management in terms of the appointment order and the second respondent having been deputed to Mumbai and the said order having not been obeyed, the management was left with no option except to discharge the second respondent's service. The learned counsel also submitted that there is no victimisation and therefore the interference made by the Labour Court on that ground is perverse and the same can be interfered with by this Court. The learned counsel for the petitioner management made an alternate submission to award compensation in case this Court finds that the order of the Labour Court is sustainable.
6. The learned counsel for the second respondent submitted that on 8.5.1995 the Union was formed and the second respondent was elected as Executive Member of the Union and he being a low paid employee, namely Shift Supervisor, was ordered to be transferred to Mumbai due to his Union activities along with three other persons. The learned counsel further submitted that one person who was transferred to Mumbai, on being resigned from the Union membership, was retained at Ranipet. The learned counsel also submitted that the second respondent was not competent to inspect the machineries to be purchased by the management as he is only a B.Sc. Chemistry graduate and was given training only in mixing of chemicals for the manufacture of soaps/surf and the Ranipet factory is manufacturing Sunlight Bar Soap and Vim Bar soap and Surf/Vim powder for the multi-national company called 'Hindustan Lever' and that he has no technical expertise to find out the working of the machineries, etc. Insofar as the contention of the management that the order of transfer was temporary and for a limited period, it was argued that no period is mentioned in the transfer order and no special allowance was also sanctioned. According to the learned counsel, the Labour Court found that there was victimisation on the part of the management and without conducting any enquiry, the second respondent was discharged from service, and taking note of the above facts the award was passed in favour of the second respondent and there is no perversity in the said findings.
7. I have considered the rival submissions of the learned counsel for the petitioner as well as second respondent.
8. The second respondent was appointed in the petitioner Soap Manufacturing Company by order dated 14.7.1988 and he was designated as Packing Supervisor. In the order of appointment it is stated that the second respondent agreed to serve in any of the petitioner's sister concern/branches/subsidiaries within the territory of India. Even according to the petitioner-management, there is no branch or subsidiary office available at Mumbai to manufacture soap or detergent, for posting the second respondent as Packing Supervisor.
9. The reason stated for transferring the second respondent was to survey the equipments under manufacture by the suppliers. It is the specific case of the second respondent that he being a B.Sc Chemistry graduate, was trained only for the manufacture of soaps i.e., mixing of chemicals and he is not well-versed or trained to inspect and survey the equipments/machineries.
10. It is not in dispute that he became the Executive Committee member of the newly formed Trade Union, which was formed on 8.5.1994. Ex.W-6 was marked by the second respondent to prove the same. The Office bearers of the Trade Union viz., the second respondent and two others were transferred/deputed to Mumbai office. It is admitted by the management witness No.1 during cross-examination deposed that the second respondent and two others were deputed/transferred and all the three persons failed to report for duty at Mumbai. One P.Sivakumar, who was also deputed to Mumbai, on being resigned from the membership of the Union, was allowed to serve at Ranipet. The second respondent has filed Ex.W-4 dated 8.5.1994 in support of his contention that the Employees' Union was formed and a resolution copy has been marked. The learned counsel for the petitioner management submitted that in the transfer order, the second respondent was offered special pay, however, the transfer order dated 2.8.1994 which is marked as Ex.M-11 nowhere states that special pay is ordered to the second respondent, while he was ordered to report for duty before the Mumbai Office Manager. The only thing stated in the said order is that he can collect advance of Rs.450/- for travelling and other expenses on suspense account. Thus, the contention raised by the management stating that the second respondent was offered additional or special pay, while he was deputed to Mumbai office is untenable. Admittedly, the second respondent was paid a sum of Rs.1,400/- per month and he has expressed his inability to reside at Mumbai, while retaining his family at Ranipet.
11. It is also claimed by the petitioner management that the deputation/transfer was for a limited period. From the perusal of the transfer order dated 2.8.1994 (Ex.M-11), it is clear the period of deputation/transfer is not mentioned. For proper appreciation, the transfer order dated 2.8.1994 is extracted hereunder, "ULIRAMARINE & PIGMENTS LIMITED,
MANUFACTURERS OF DETERGENTS & ULTRAMARINE BLUE
2.8.94
Mr.R.Narasimhan
Junior Shift Supervisor
We understand from our suppliers at Bombay that the equipments for which we have placed orders are getting ready and they have advised us to make arrangements for stage by stage inspection of the equipments. We have decided to depute the three of your viz. (1) Mr.B.Sivakumar, (2) Mr.G.T.Sivakumar (3) Mr.R.Narasimhan, to Bombay to inspect and survey the equipments under manufacture and fabrication by our suppliers. Further instructions in this regard will be given to your by our Bombay office when your report there. You are requuired to report to our Bombay office Manager Mr.V.R.Manohar, on or before 8.8.94. In view of this, you may collect your advances from the company and get relieved on Wednesday the 3rd August, 94. Each of you may collect Rs.450/- for your travelling and other expenses on suspense account. You may render proper account to our Bombay office." It is not disputed by the management that M/s.B.Sivakumar, G.T.Sivakumar and the second respondent herein were transferred/deputed to Mumbai and all the above persons are members of the Union. Admittedly no other non-member of the Union have been deputed/transferred to Mumbai.
12. Taking note of the above undisputed facts, the Labour Court recorded its findings that there is victimisation by the management and the second respondent was discharged from service with unduly haste with clear determination of mind, without conducting any enquiry. The Labour Court also found that compensation in lieu of reinstatement will not be the adequate relief as it will give wrong signal to other employers to victimise their employees. The Labour Court also found that the second respondent proved that he was not gainfully employed during his non-employment period and consequently ordered reinstatement with backwages and continuity of service. There is no perversity in the findings given by the Labour Court, warranting interference under Article 226 of the Constitution of India.
13. The contention of the learned counsel for the petitioner-management that the second respondent having been appointed in a transferable post, is bound to report for duty at Mumbai, when he was given order of transfer/deputation. The Labour Court gave a finding that the Mumbai Office may not be a branch office as there was no manufacturing process carried on, and it is only an administrative office and therefore the second respondent, who was selected as Packing Supervisor, has no duty to perform in the administrative office at Mumbai.
14. Though transfer is an incidence of service, taking into consideration the facts and circumstances of this case, where there is no manufacturing process carried on at Mumbai, the transfer order issued to the second respondent cannot be treated as an order of transfer simplicitor. The management also cannot sustain the order on the ground of exigency in service, particularly, when it is established before the Labour Court that only three persons, who became office bearers of the Union alone were transferred to Mumbai administrative office.
15. The alternate submission made by the learned counsel for the petitioner-management that the second respondent may be given a lumpsum in lieu of reinstatement also cannot be sustained in view of the fact that the second respondent has not involved in any misappropriation or committed any delinquency and thereby the management lost its confidence on him. In the counter statement filed before the Labour Court, though a plea is raised that the management had lost confidence on the second respondent, the said plea was not proved by any acceptable evidence before the Labour Court and the Labour Court having came to the conclusion that there is victimisation on the part of the management, as rightly observed by the Labour Court, if the alternate plea of compensation in lieu of reinstatement is ordered, it will give wrong signal to the managements to discharge/dismiss their employees, who are genuinely ventilating their grievance to get their statutory rights and benefits according to the Labour Welfare Legislations.
16. In the decision reported in (1975) 1 SCC 574 : 1975 (1) LLJ 262 (L.Michael v. M/s.Johnson Pumps India Ltd.) in paragraphs 19, 21 and 22 (in SCC) it is held thus,
"19. ................ The law is simply this: The Tribunal has the power and, indeed, the duty to X-ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated. But if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeniously passes an innocent-looking order of termination simpliciter, such action is bad and is liable to be set aside. Loss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by a catena of cases of this Court, can be subverted by this neo-formula. Loss of confidence in the law will be the consequence of the Loss of Confidence doctrine.
20. ......................................
21. ................. We are constrained to express ourselves unmistakably lest industrial unrest induced by wrongful terminations based on convenient loss of confidence should be generated.
22. Before we conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. If the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially." In the decision reported in (2001) 9 SCC 609 (Kanhaiyalal Agrawal v. Factory Manager, Gwalior Sugar Co. Ltd.) the question with regard to loss of confidence by employee was considered. In paragraph 9 it is held as follows: "9. Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the Labour Court has been reversed in appeal by the Industrial Court on unreasonable grounds. What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on the ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost."
17. The plea raised by the learned counsel for the petitioner that the second respondent was temporarily posted/deputed to Mumbai also cannot be sustained in the absence of any such reason stated in the order of transfer, which is extracted above.
18. It is well settled in law that transfer order can be interfered with only when any statutory violation or mala fide or victimisation is proved. Here in this case, the victimisation is proved before the Labour Court and the management has also shown undue hasteness in discharging the second respondent, without even conducting any enquiry by framing regular charges. The attempt made before the Labour Court to sustain the order of discharge was rightly rejected by the Labour Court.
19. On the basis of the above findings, I hold, no case is made out to interfere in the award passed by the Labour Court, warranting interference.
The writ petition is dismissed. No costs.
vr
To
The Presiding Officer, Labour Court,
Vellore
TRANSFER DISOBEDIENCE-NO ENQUIRY-VICTIMISATION-ILLEGAL
REPORTED IN (2010 I LLN 240)
Chennai High Court
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18-8-2009
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
WRIT PETITION NO.7879 OF 2001
The Management of Ultramarine and Pigments Ltd.,
25-B SIPCOT,
Ranipet. ... Petitioner
Vs.
1. The Presiding Officer,
Labour Court, Vellore.
2. R. Narasimhan ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the first respondent in I.D.No.431/94 and quash the award dated 4.1.2001.
For Petitioners : Mr.Ravi
for M/s.T.S.Gopalan & Co.,
1st Respondent : Labour Court
For 2nd Respondent : Mr.R.Rajaram
O R D E R
The prayer in this writ petition is to quash the award made in I.D.No.431 of 1994 dated 4.1.2001 on the file of the Labour Court, Vellore.
2. The case of the petitioner-management as could be seen from the affidavit in support of the writ petition are as follows:
(a) The second respondent was employed as Supervisor in the petitioner Soap Factory at Ranipet. During April, 1999, the management placed orders with the manufacturers at Mumbai for supply of certain machineries in connection with the expansion of the manufacturing activities at Ranipet. According to the petitioner, the second respondent was involved in various manufacturing activities in the factory and in order to ensure proper execution of the work order given to the manufacturer at Mumbai, and also to survey and inspect the machineries, the management decided to send competent technicians to Mumbai for certain period. (b) The second respondent and two others were found fit for the above job and on 2.8.1994 they were issued with orders deputing them to Mumbai. The second respondent was required to report before the petitioner's Mumbai office Manager on or before 8.8.1994. (c) It is claimed in the affidavit that the second respondent refused to accept the said order and sent a letter on 8.8.1994 by stating that he was working in the factory at Ranipet for the past seven years and as per the Model Standing Orders, there was no provision to transfer employees like him, who are paid consolidated salary and it is not possible for him to maintain his family at Ranipet, while staying at Mumbai and therefore he requested to post him at Rnipet itself. (d) The management sent a reply stating that as per clause 6 of the order of appointment, the second respondent is liable for transfer anywhere in India and the second respondent was sent for the purpose of inspection and survey the equipments and directed the second respondent to report at Mumbai. (e) Again, the second respondent sent a letter on 16.8.1994 and objected the said transfer and requested to permit him to work at Ranipet. On 20.8.1994, the management once again directed the second respondent to report at Mumbai, failing which he would be liable for disciplinary action. (f) The second respondent having not reported for duty at Mumbai, a show cause notice was issued on 23.8.1994, calling upon the second respondent as to why he should not be dismissed from service for his refusal to attend to work at Mumbai. The second respondent sent a reply on 29.8.1994 and reiterated his stand. As the second respondent refused to obey the transfer order, on 30.8.1994 he was discharged from service. The second respondent raised I.D.No.431 of 1994 before the first respondent by contending that he was victimised for his Trade Union activities and prayed for reinstatement with backwages and continuity of service. The management filed counter statement and denied the same.
3. Before the Labour Court, the second respondent examined himself as a witness and marked 26 exhibits on his side. On behalf of the management, the then Works Manager was examined as MW-1 and Exs.M-1 to M-53 were marked. The Labour Court, by award dated 4.1.2001, directed the petitioner management to reinstate the second respondent with backwages and continuity of service with cost of Rs.1,000/-.
4. The said award passed by the first respondent-Labour Court is challenged in this writ petition on the ground that the appointment order given to the second respondent empowers the management to transfer him and the second respondent having failed to obey the transfer order, he was discharged from service. It is also contended in the affidavit that transfer being an incidence of service and the management having discharged the second respondent for disobedience of the transfer order, the Labour Court was not justified in setting aside the said order and ordering reinstatement with all benefits.
5. The learned counsel for the management during the course of the arguments submitted that he is not pressing the first issue raised before the Labour Court with regard to the maintainability of the Industrial Dispute and the second respondent can be treated as a Workman as he was not having any managerial/administrative powers. The said submission made by the learned counsel for the management is recorded. Insofar as the other issue as to whether the second respondent can be transferred to any other place and the said transfer power having been vested with the management in terms of the appointment order and the second respondent having been deputed to Mumbai and the said order having not been obeyed, the management was left with no option except to discharge the second respondent's service. The learned counsel also submitted that there is no victimisation and therefore the interference made by the Labour Court on that ground is perverse and the same can be interfered with by this Court. The learned counsel for the petitioner management made an alternate submission to award compensation in case this Court finds that the order of the Labour Court is sustainable.
6. The learned counsel for the second respondent submitted that on 8.5.1995 the Union was formed and the second respondent was elected as Executive Member of the Union and he being a low paid employee, namely Shift Supervisor, was ordered to be transferred to Mumbai due to his Union activities along with three other persons. The learned counsel further submitted that one person who was transferred to Mumbai, on being resigned from the Union membership, was retained at Ranipet. The learned counsel also submitted that the second respondent was not competent to inspect the machineries to be purchased by the management as he is only a B.Sc. Chemistry graduate and was given training only in mixing of chemicals for the manufacture of soaps/surf and the Ranipet factory is manufacturing Sunlight Bar Soap and Vim Bar soap and Surf/Vim powder for the multi-national company called 'Hindustan Lever' and that he has no technical expertise to find out the working of the machineries, etc. Insofar as the contention of the management that the order of transfer was temporary and for a limited period, it was argued that no period is mentioned in the transfer order and no special allowance was also sanctioned. According to the learned counsel, the Labour Court found that there was victimisation on the part of the management and without conducting any enquiry, the second respondent was discharged from service, and taking note of the above facts the award was passed in favour of the second respondent and there is no perversity in the said findings.
7. I have considered the rival submissions of the learned counsel for the petitioner as well as second respondent.
8. The second respondent was appointed in the petitioner Soap Manufacturing Company by order dated 14.7.1988 and he was designated as Packing Supervisor. In the order of appointment it is stated that the second respondent agreed to serve in any of the petitioner's sister concern/branches/subsidiaries within the territory of India. Even according to the petitioner-management, there is no branch or subsidiary office available at Mumbai to manufacture soap or detergent, for posting the second respondent as Packing Supervisor.
9. The reason stated for transferring the second respondent was to survey the equipments under manufacture by the suppliers. It is the specific case of the second respondent that he being a B.Sc Chemistry graduate, was trained only for the manufacture of soaps i.e., mixing of chemicals and he is not well-versed or trained to inspect and survey the equipments/machineries.
10. It is not in dispute that he became the Executive Committee member of the newly formed Trade Union, which was formed on 8.5.1994. Ex.W-6 was marked by the second respondent to prove the same. The Office bearers of the Trade Union viz., the second respondent and two others were transferred/deputed to Mumbai office. It is admitted by the management witness No.1 during cross-examination deposed that the second respondent and two others were deputed/transferred and all the three persons failed to report for duty at Mumbai. One P.Sivakumar, who was also deputed to Mumbai, on being resigned from the membership of the Union, was allowed to serve at Ranipet. The second respondent has filed Ex.W-4 dated 8.5.1994 in support of his contention that the Employees' Union was formed and a resolution copy has been marked. The learned counsel for the petitioner management submitted that in the transfer order, the second respondent was offered special pay, however, the transfer order dated 2.8.1994 which is marked as Ex.M-11 nowhere states that special pay is ordered to the second respondent, while he was ordered to report for duty before the Mumbai Office Manager. The only thing stated in the said order is that he can collect advance of Rs.450/- for travelling and other expenses on suspense account. Thus, the contention raised by the management stating that the second respondent was offered additional or special pay, while he was deputed to Mumbai office is untenable. Admittedly, the second respondent was paid a sum of Rs.1,400/- per month and he has expressed his inability to reside at Mumbai, while retaining his family at Ranipet.
11. It is also claimed by the petitioner management that the deputation/transfer was for a limited period. From the perusal of the transfer order dated 2.8.1994 (Ex.M-11), it is clear the period of deputation/transfer is not mentioned. For proper appreciation, the transfer order dated 2.8.1994 is extracted hereunder, "ULIRAMARINE & PIGMENTS LIMITED,
MANUFACTURERS OF DETERGENTS & ULTRAMARINE BLUE
2.8.94
Mr.R.Narasimhan
Junior Shift Supervisor
We understand from our suppliers at Bombay that the equipments for which we have placed orders are getting ready and they have advised us to make arrangements for stage by stage inspection of the equipments. We have decided to depute the three of your viz. (1) Mr.B.Sivakumar, (2) Mr.G.T.Sivakumar (3) Mr.R.Narasimhan, to Bombay to inspect and survey the equipments under manufacture and fabrication by our suppliers. Further instructions in this regard will be given to your by our Bombay office when your report there. You are requuired to report to our Bombay office Manager Mr.V.R.Manohar, on or before 8.8.94. In view of this, you may collect your advances from the company and get relieved on Wednesday the 3rd August, 94. Each of you may collect Rs.450/- for your travelling and other expenses on suspense account. You may render proper account to our Bombay office." It is not disputed by the management that M/s.B.Sivakumar, G.T.Sivakumar and the second respondent herein were transferred/deputed to Mumbai and all the above persons are members of the Union. Admittedly no other non-member of the Union have been deputed/transferred to Mumbai.
12. Taking note of the above undisputed facts, the Labour Court recorded its findings that there is victimisation by the management and the second respondent was discharged from service with unduly haste with clear determination of mind, without conducting any enquiry. The Labour Court also found that compensation in lieu of reinstatement will not be the adequate relief as it will give wrong signal to other employers to victimise their employees. The Labour Court also found that the second respondent proved that he was not gainfully employed during his non-employment period and consequently ordered reinstatement with backwages and continuity of service. There is no perversity in the findings given by the Labour Court, warranting interference under Article 226 of the Constitution of India.
13. The contention of the learned counsel for the petitioner-management that the second respondent having been appointed in a transferable post, is bound to report for duty at Mumbai, when he was given order of transfer/deputation. The Labour Court gave a finding that the Mumbai Office may not be a branch office as there was no manufacturing process carried on, and it is only an administrative office and therefore the second respondent, who was selected as Packing Supervisor, has no duty to perform in the administrative office at Mumbai.
14. Though transfer is an incidence of service, taking into consideration the facts and circumstances of this case, where there is no manufacturing process carried on at Mumbai, the transfer order issued to the second respondent cannot be treated as an order of transfer simplicitor. The management also cannot sustain the order on the ground of exigency in service, particularly, when it is established before the Labour Court that only three persons, who became office bearers of the Union alone were transferred to Mumbai administrative office.
15. The alternate submission made by the learned counsel for the petitioner-management that the second respondent may be given a lumpsum in lieu of reinstatement also cannot be sustained in view of the fact that the second respondent has not involved in any misappropriation or committed any delinquency and thereby the management lost its confidence on him. In the counter statement filed before the Labour Court, though a plea is raised that the management had lost confidence on the second respondent, the said plea was not proved by any acceptable evidence before the Labour Court and the Labour Court having came to the conclusion that there is victimisation on the part of the management, as rightly observed by the Labour Court, if the alternate plea of compensation in lieu of reinstatement is ordered, it will give wrong signal to the managements to discharge/dismiss their employees, who are genuinely ventilating their grievance to get their statutory rights and benefits according to the Labour Welfare Legislations.
16. In the decision reported in (1975) 1 SCC 574 : 1975 (1) LLJ 262 (L.Michael v. M/s.Johnson Pumps India Ltd.) in paragraphs 19, 21 and 22 (in SCC) it is held thus,
"19. ................ The law is simply this: The Tribunal has the power and, indeed, the duty to X-ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated. But if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeniously passes an innocent-looking order of termination simpliciter, such action is bad and is liable to be set aside. Loss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by a catena of cases of this Court, can be subverted by this neo-formula. Loss of confidence in the law will be the consequence of the Loss of Confidence doctrine.
20. ......................................
21. ................. We are constrained to express ourselves unmistakably lest industrial unrest induced by wrongful terminations based on convenient loss of confidence should be generated.
22. Before we conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. If the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially." In the decision reported in (2001) 9 SCC 609 (Kanhaiyalal Agrawal v. Factory Manager, Gwalior Sugar Co. Ltd.) the question with regard to loss of confidence by employee was considered. In paragraph 9 it is held as follows: "9. Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the Labour Court has been reversed in appeal by the Industrial Court on unreasonable grounds. What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on the ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost."
17. The plea raised by the learned counsel for the petitioner that the second respondent was temporarily posted/deputed to Mumbai also cannot be sustained in the absence of any such reason stated in the order of transfer, which is extracted above.
18. It is well settled in law that transfer order can be interfered with only when any statutory violation or mala fide or victimisation is proved. Here in this case, the victimisation is proved before the Labour Court and the management has also shown undue hasteness in discharging the second respondent, without even conducting any enquiry by framing regular charges. The attempt made before the Labour Court to sustain the order of discharge was rightly rejected by the Labour Court.
19. On the basis of the above findings, I hold, no case is made out to interfere in the award passed by the Labour Court, warranting interference.
The writ petition is dismissed. No costs.
vr
To
The Presiding Officer, Labour Court,
Vellore
Chennai High Court
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18-8-2009
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
WRIT PETITION NO.7879 OF 2001
The Management of Ultramarine and Pigments Ltd.,
25-B SIPCOT,
Ranipet. ... Petitioner
Vs.
1. The Presiding Officer,
Labour Court, Vellore.
2. R. Narasimhan ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the first respondent in I.D.No.431/94 and quash the award dated 4.1.2001.
For Petitioners : Mr.Ravi
for M/s.T.S.Gopalan & Co.,
1st Respondent : Labour Court
For 2nd Respondent : Mr.R.Rajaram
O R D E R
The prayer in this writ petition is to quash the award made in I.D.No.431 of 1994 dated 4.1.2001 on the file of the Labour Court, Vellore.
2. The case of the petitioner-management as could be seen from the affidavit in support of the writ petition are as follows:
(a) The second respondent was employed as Supervisor in the petitioner Soap Factory at Ranipet. During April, 1999, the management placed orders with the manufacturers at Mumbai for supply of certain machineries in connection with the expansion of the manufacturing activities at Ranipet. According to the petitioner, the second respondent was involved in various manufacturing activities in the factory and in order to ensure proper execution of the work order given to the manufacturer at Mumbai, and also to survey and inspect the machineries, the management decided to send competent technicians to Mumbai for certain period. (b) The second respondent and two others were found fit for the above job and on 2.8.1994 they were issued with orders deputing them to Mumbai. The second respondent was required to report before the petitioner's Mumbai office Manager on or before 8.8.1994. (c) It is claimed in the affidavit that the second respondent refused to accept the said order and sent a letter on 8.8.1994 by stating that he was working in the factory at Ranipet for the past seven years and as per the Model Standing Orders, there was no provision to transfer employees like him, who are paid consolidated salary and it is not possible for him to maintain his family at Ranipet, while staying at Mumbai and therefore he requested to post him at Rnipet itself. (d) The management sent a reply stating that as per clause 6 of the order of appointment, the second respondent is liable for transfer anywhere in India and the second respondent was sent for the purpose of inspection and survey the equipments and directed the second respondent to report at Mumbai. (e) Again, the second respondent sent a letter on 16.8.1994 and objected the said transfer and requested to permit him to work at Ranipet. On 20.8.1994, the management once again directed the second respondent to report at Mumbai, failing which he would be liable for disciplinary action. (f) The second respondent having not reported for duty at Mumbai, a show cause notice was issued on 23.8.1994, calling upon the second respondent as to why he should not be dismissed from service for his refusal to attend to work at Mumbai. The second respondent sent a reply on 29.8.1994 and reiterated his stand. As the second respondent refused to obey the transfer order, on 30.8.1994 he was discharged from service. The second respondent raised I.D.No.431 of 1994 before the first respondent by contending that he was victimised for his Trade Union activities and prayed for reinstatement with backwages and continuity of service. The management filed counter statement and denied the same.
3. Before the Labour Court, the second respondent examined himself as a witness and marked 26 exhibits on his side. On behalf of the management, the then Works Manager was examined as MW-1 and Exs.M-1 to M-53 were marked. The Labour Court, by award dated 4.1.2001, directed the petitioner management to reinstate the second respondent with backwages and continuity of service with cost of Rs.1,000/-.
4. The said award passed by the first respondent-Labour Court is challenged in this writ petition on the ground that the appointment order given to the second respondent empowers the management to transfer him and the second respondent having failed to obey the transfer order, he was discharged from service. It is also contended in the affidavit that transfer being an incidence of service and the management having discharged the second respondent for disobedience of the transfer order, the Labour Court was not justified in setting aside the said order and ordering reinstatement with all benefits.
5. The learned counsel for the management during the course of the arguments submitted that he is not pressing the first issue raised before the Labour Court with regard to the maintainability of the Industrial Dispute and the second respondent can be treated as a Workman as he was not having any managerial/administrative powers. The said submission made by the learned counsel for the management is recorded. Insofar as the other issue as to whether the second respondent can be transferred to any other place and the said transfer power having been vested with the management in terms of the appointment order and the second respondent having been deputed to Mumbai and the said order having not been obeyed, the management was left with no option except to discharge the second respondent's service. The learned counsel also submitted that there is no victimisation and therefore the interference made by the Labour Court on that ground is perverse and the same can be interfered with by this Court. The learned counsel for the petitioner management made an alternate submission to award compensation in case this Court finds that the order of the Labour Court is sustainable.
6. The learned counsel for the second respondent submitted that on 8.5.1995 the Union was formed and the second respondent was elected as Executive Member of the Union and he being a low paid employee, namely Shift Supervisor, was ordered to be transferred to Mumbai due to his Union activities along with three other persons. The learned counsel further submitted that one person who was transferred to Mumbai, on being resigned from the Union membership, was retained at Ranipet. The learned counsel also submitted that the second respondent was not competent to inspect the machineries to be purchased by the management as he is only a B.Sc. Chemistry graduate and was given training only in mixing of chemicals for the manufacture of soaps/surf and the Ranipet factory is manufacturing Sunlight Bar Soap and Vim Bar soap and Surf/Vim powder for the multi-national company called 'Hindustan Lever' and that he has no technical expertise to find out the working of the machineries, etc. Insofar as the contention of the management that the order of transfer was temporary and for a limited period, it was argued that no period is mentioned in the transfer order and no special allowance was also sanctioned. According to the learned counsel, the Labour Court found that there was victimisation on the part of the management and without conducting any enquiry, the second respondent was discharged from service, and taking note of the above facts the award was passed in favour of the second respondent and there is no perversity in the said findings.
7. I have considered the rival submissions of the learned counsel for the petitioner as well as second respondent.
8. The second respondent was appointed in the petitioner Soap Manufacturing Company by order dated 14.7.1988 and he was designated as Packing Supervisor. In the order of appointment it is stated that the second respondent agreed to serve in any of the petitioner's sister concern/branches/subsidiaries within the territory of India. Even according to the petitioner-management, there is no branch or subsidiary office available at Mumbai to manufacture soap or detergent, for posting the second respondent as Packing Supervisor.
9. The reason stated for transferring the second respondent was to survey the equipments under manufacture by the suppliers. It is the specific case of the second respondent that he being a B.Sc Chemistry graduate, was trained only for the manufacture of soaps i.e., mixing of chemicals and he is not well-versed or trained to inspect and survey the equipments/machineries.
10. It is not in dispute that he became the Executive Committee member of the newly formed Trade Union, which was formed on 8.5.1994. Ex.W-6 was marked by the second respondent to prove the same. The Office bearers of the Trade Union viz., the second respondent and two others were transferred/deputed to Mumbai office. It is admitted by the management witness No.1 during cross-examination deposed that the second respondent and two others were deputed/transferred and all the three persons failed to report for duty at Mumbai. One P.Sivakumar, who was also deputed to Mumbai, on being resigned from the membership of the Union, was allowed to serve at Ranipet. The second respondent has filed Ex.W-4 dated 8.5.1994 in support of his contention that the Employees' Union was formed and a resolution copy has been marked. The learned counsel for the petitioner management submitted that in the transfer order, the second respondent was offered special pay, however, the transfer order dated 2.8.1994 which is marked as Ex.M-11 nowhere states that special pay is ordered to the second respondent, while he was ordered to report for duty before the Mumbai Office Manager. The only thing stated in the said order is that he can collect advance of Rs.450/- for travelling and other expenses on suspense account. Thus, the contention raised by the management stating that the second respondent was offered additional or special pay, while he was deputed to Mumbai office is untenable. Admittedly, the second respondent was paid a sum of Rs.1,400/- per month and he has expressed his inability to reside at Mumbai, while retaining his family at Ranipet.
11. It is also claimed by the petitioner management that the deputation/transfer was for a limited period. From the perusal of the transfer order dated 2.8.1994 (Ex.M-11), it is clear the period of deputation/transfer is not mentioned. For proper appreciation, the transfer order dated 2.8.1994 is extracted hereunder, "ULIRAMARINE & PIGMENTS LIMITED,
MANUFACTURERS OF DETERGENTS & ULTRAMARINE BLUE
2.8.94
Mr.R.Narasimhan
Junior Shift Supervisor
We understand from our suppliers at Bombay that the equipments for which we have placed orders are getting ready and they have advised us to make arrangements for stage by stage inspection of the equipments. We have decided to depute the three of your viz. (1) Mr.B.Sivakumar, (2) Mr.G.T.Sivakumar (3) Mr.R.Narasimhan, to Bombay to inspect and survey the equipments under manufacture and fabrication by our suppliers. Further instructions in this regard will be given to your by our Bombay office when your report there. You are requuired to report to our Bombay office Manager Mr.V.R.Manohar, on or before 8.8.94. In view of this, you may collect your advances from the company and get relieved on Wednesday the 3rd August, 94. Each of you may collect Rs.450/- for your travelling and other expenses on suspense account. You may render proper account to our Bombay office." It is not disputed by the management that M/s.B.Sivakumar, G.T.Sivakumar and the second respondent herein were transferred/deputed to Mumbai and all the above persons are members of the Union. Admittedly no other non-member of the Union have been deputed/transferred to Mumbai.
12. Taking note of the above undisputed facts, the Labour Court recorded its findings that there is victimisation by the management and the second respondent was discharged from service with unduly haste with clear determination of mind, without conducting any enquiry. The Labour Court also found that compensation in lieu of reinstatement will not be the adequate relief as it will give wrong signal to other employers to victimise their employees. The Labour Court also found that the second respondent proved that he was not gainfully employed during his non-employment period and consequently ordered reinstatement with backwages and continuity of service. There is no perversity in the findings given by the Labour Court, warranting interference under Article 226 of the Constitution of India.
13. The contention of the learned counsel for the petitioner-management that the second respondent having been appointed in a transferable post, is bound to report for duty at Mumbai, when he was given order of transfer/deputation. The Labour Court gave a finding that the Mumbai Office may not be a branch office as there was no manufacturing process carried on, and it is only an administrative office and therefore the second respondent, who was selected as Packing Supervisor, has no duty to perform in the administrative office at Mumbai.
14. Though transfer is an incidence of service, taking into consideration the facts and circumstances of this case, where there is no manufacturing process carried on at Mumbai, the transfer order issued to the second respondent cannot be treated as an order of transfer simplicitor. The management also cannot sustain the order on the ground of exigency in service, particularly, when it is established before the Labour Court that only three persons, who became office bearers of the Union alone were transferred to Mumbai administrative office.
15. The alternate submission made by the learned counsel for the petitioner-management that the second respondent may be given a lumpsum in lieu of reinstatement also cannot be sustained in view of the fact that the second respondent has not involved in any misappropriation or committed any delinquency and thereby the management lost its confidence on him. In the counter statement filed before the Labour Court, though a plea is raised that the management had lost confidence on the second respondent, the said plea was not proved by any acceptable evidence before the Labour Court and the Labour Court having came to the conclusion that there is victimisation on the part of the management, as rightly observed by the Labour Court, if the alternate plea of compensation in lieu of reinstatement is ordered, it will give wrong signal to the managements to discharge/dismiss their employees, who are genuinely ventilating their grievance to get their statutory rights and benefits according to the Labour Welfare Legislations.
16. In the decision reported in (1975) 1 SCC 574 : 1975 (1) LLJ 262 (L.Michael v. M/s.Johnson Pumps India Ltd.) in paragraphs 19, 21 and 22 (in SCC) it is held thus,
"19. ................ The law is simply this: The Tribunal has the power and, indeed, the duty to X-ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated. But if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeniously passes an innocent-looking order of termination simpliciter, such action is bad and is liable to be set aside. Loss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by a catena of cases of this Court, can be subverted by this neo-formula. Loss of confidence in the law will be the consequence of the Loss of Confidence doctrine.
20. ......................................
21. ................. We are constrained to express ourselves unmistakably lest industrial unrest induced by wrongful terminations based on convenient loss of confidence should be generated.
22. Before we conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. If the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially." In the decision reported in (2001) 9 SCC 609 (Kanhaiyalal Agrawal v. Factory Manager, Gwalior Sugar Co. Ltd.) the question with regard to loss of confidence by employee was considered. In paragraph 9 it is held as follows: "9. Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the Labour Court has been reversed in appeal by the Industrial Court on unreasonable grounds. What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on the ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost."
17. The plea raised by the learned counsel for the petitioner that the second respondent was temporarily posted/deputed to Mumbai also cannot be sustained in the absence of any such reason stated in the order of transfer, which is extracted above.
18. It is well settled in law that transfer order can be interfered with only when any statutory violation or mala fide or victimisation is proved. Here in this case, the victimisation is proved before the Labour Court and the management has also shown undue hasteness in discharging the second respondent, without even conducting any enquiry by framing regular charges. The attempt made before the Labour Court to sustain the order of discharge was rightly rejected by the Labour Court.
19. On the basis of the above findings, I hold, no case is made out to interfere in the award passed by the Labour Court, warranting interference.
The writ petition is dismissed. No costs.
vr
To
The Presiding Officer, Labour Court,
Vellore
Saturday, July 17, 2010
online petition to the Prime Minister of India on the question of adopting Secret Ballot System to recognize trade unions
I have created an online petition to the Prime Minister of India on the question of adopting Secret Ballot System to recognize trade unions for collective bargaining in consonance with UNO/ILO conventions and Supreme Court judgment.The on line petition is accessible in the following link
http://www.gopetition.com/petition/37823.html
http://www.ipetitions.com/petition/secretballot/
http://www.petitiononline.com/s88b88/petition.html
Kindly sign the petition and also arrange to pass on this message to our friends,comrades so that they can also sign the petition on line to strengthen the movement of signature campaign on line for secret ballot system of recognizing trade unions.
By :P.ESAKKIMUTHU-TUTICORIN
http://www.gopetition.com/petition/37823.html
http://www.ipetitions.com/petition/secretballot/
http://www.petitiononline.com/s88b88/petition.html
Kindly sign the petition and also arrange to pass on this message to our friends,comrades so that they can also sign the petition on line to strengthen the movement of signature campaign on line for secret ballot system of recognizing trade unions.
By :P.ESAKKIMUTHU-TUTICORIN
online petition to the Prime Minister of India on the question of adopting Secret Ballot System to recognize trade unions for collective bargaining
I have created an online petition to the Prime Minister of India on the question of adopting Secret Ballot System to recognize trade unions for collective bargaining in consonance with UNO/ILO conventions and Supreme Court judgment.The on line petition is accessible in the following link
http://www.gopetition.com/petition/37823.html
Kindly sign the petition and also arrange to pass on this message to our friends,comrades so that they can also sign the petition on line to strengthen the movement of signature campaign on line for secret ballot system of recognizing trade unions.
By :P.ESAKKIMUTHU-TUTICORIN
Sunday, July 11, 2010
Whether LIC employee can contest assembly elections
Madras High Court
Brief
Citation
Judgement
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.11.2008
CORAM:
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.29284 of 2005
K.Rayar ... Petitioner
Vs
1. The Senior Divisional Manager,
(Disciplinary Authority)
Life Insurance Corporation of India,
Divisional Office, Jeevan Prakash,
Arcot Road, P.B.No.423,
Vellore-632 004.
2. The Zonal Manager,
(The Appellate Authority)
Life Insurance Corporation of India,
Southern Zonal Office,
LIC Buildings, Anna Salai,
Chennai-600 002. ... Respondents
PRAYER:- Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the first respondent Ref.No.nil dated 12.4.2005 and consequential order Ref.No.nil, dated 27.5.2005 passed by the second respondent confirming the order passed by the first respondent, quash the same and consequently direct the respondents to reinstate the petitioner into service with all backwages with service and other monetary benefits.
For petitioner : Mr. D.Rajagopal for
Mr.A.Thirumurthy
For Respondents : Mr.S.Silambanan, SC for
Mr.N.Umapathy
*****
O R D E R
Heard Mr.D.Rajagopal, learned counsel representing Mr.A.Thirumurthy, learned counsel for the petitioner and Mr.Silambanan, learned Senior Counsel appearing for Mr.N.Umapathy, learned counsel for the respondents and perused the records.
2. The writ petition is filed against the order of the first respondent dated 12.4.2005 and the consequential order passed by the second respondent dated 27.5.2005 confirming the earlier order and after setting aside the same to direct the respondents to reinstate the petitioner into service.
3. The petitioner was working as a Development Officer in the respondent Life Insurance Corporation of India (for short 'LIC'). He had put in 23 years of service in total. Initially, he worked as a LIC Agent for six years and thereafter as a Development Officer for 17 years. He claims to have conducted business as Development Officer for more than Rs.100 crores.
4. The petitioner sent a letter dated 12.3.2004 to the Union of India through proper channel seeking permission to contest the Lok Sabha elections held during 2004 and he also sought for 30 days Privilege Leave. Further, by a letter dated 16.4.2004, he informed the first respondent about the impending elections and his having submitted nomination for contesting elections from Tindivanam Constituency. By a letter dated 20.4.2004, the petitioner was informed by the first respondent that his request was not considered by a communication dated 16.4.2004 received from the Central Office.
5. The petitioner sent a further reply dated 24.4.2004 stating that he has completed his norms as an employee of the LIC and standing in the election is purely his personal affair for which the respondent cannot have any say in the matter. However, charges were framed and he was issued with a charge memo dated 29.4.2004. The charges indicated that the petitioner's filing nomination for contesting the general election from Tindivanam Lok Sabha Constituency on 16.4.2004 without permission by the competent authority was wrong and he has disregarded the directives given by the appointing authority and his writing a letter to the Ministry casting aspersions on the LIC is also objectionable.
6. Subsequently, an enquiry was ordered to be conducted by the Enquiry Officer. The Enquiry was said to have been held on 17.6.2004, in which the petitioner's statement was recorded. The petitioner had admitted that he had filed nomination on 16.4.2004 but subsequently he withdrew his nomination on 26.4.2004 at 3.10 p.m. and he had attended office on 08.5.2004 after cancelling his leave. Since the charges levelled against the petitioner were not specifically denied, the Enquiry Officer by his report dated 02.10.2004 found the petitioner guilty of the charges. After getting an explanation from the petitioner, a show-cause notice was issued to the petitioner dated 07.9.2004 stating that the first respondent had agreed with the Enquiry Report and since the petitioner was guilty of the misconduct in terms of Regulation 39 of the LIC of India (Staff) Regulations, 1960 (for short 'Regulations'), it was proposed to remove the petitioner from service. The petitioner sent a further reply dated 02.10.2004.
7. In his reply, he had stated that Regulation 25(4) permitting an employee to contest election to a local body with permission was alone provided and, therefore, not providing for contesting other elections is violative of Article 14 of the Constitution. He also sent a further reply dated 11.4.2005 requesting them not to impose any punishment. However, by an order dated 12.4.2005, the first respondent removed the petitioner from service. It was also indicated that the petitioner's past record and antecedents show that he was a permanent menace to the peace and order in the office. But the first respondent did not put the past record on notice to the petitioner, but nevertheless relied upon the same.
8. Before listing out the past misconduct, the first respondent had observed as follows:-
''AND WHEREAS, reverting back on his contention that the penalty is disproportionate to the misconduct, I prefer to take a lenient view. However, on perusing previous records, I find that the Chargesheeted Employee is grossly indisciplined and has violated Staff Regulations on several occasions in the past. Lenient views were taken on several occasions on the basis of his assurance of good conduct but his actions have exceeded all the limits and there is no reasonable ground to view his misconduct sympathetically as no action has deterred him from violating discipline of Office and Staff Regulations, as detailed below: ... ... ... ."
(Emphasis Added)
After listing out the past misconducts, the first respondent had observed as follows:-
''AND WHEREAS, from the above bad past records and grave antecedents for over a decade, he virtually proved to be a permanent menace to the peace and order in the functioning of the office, I cannot persuade myself to be lenient in reducing the penalty."
9. The petitioner preferred an appeal to the appellate authority, the second respondent herein. The appellate authority, by an order dated 27.5.2005 concurred with the competent authority and dismissed the appeal. In the penultimate paragraph of the said order, he had observed as follows:-
''However, with a view to explore the possibility of showing leniency, when I probed the past conduct of the appellant, I find that he is a chronic delinquent showing utter disregard to the rules and regulations of the Corporation. He has been chargesheeted on as many as eight occasions in the past and visited with various penalties. His plea that LIC of India (Staff) Regulations, 1960 is not applicable to him itself speaks the sanctity he attaches to the Regulations. If any leniency is extended to such a person, the interest of the Corporation will be in jeopardy and it will also send wrong signals. Hence, my interference in this case is not at all warranted and the case does not merit any leniency at my hands."
(Emphasis Added)
10. Thereafter, the petitioner filed a memorial to the Chairman of the LIC of India vide his memorial dated 06.6.2005. The Chairman of the Corporation by his order dated 12.9.2005, rejected the memorial. Though he has not challenged the order of the Chairman dismissing his memorial dated 06.6.2005, it is seen that the writ petition was filed even prior to the receipt of the memorial and the writ petition itself came to be admitted on 13.9.2005, whereas, the memorial was signed by the Chairman only on 12.9.2005 and must have reached the petitioner some time thereafter. Since the memorial was dismissed, it only reinforces the earlier orders. This Court is of the opinion that the order passed in the memorial need not be challenged separately. Though the petitioner sought for an interim order, the same was denied by this Court by an order dated 30.9.2005. A counter affidavit dated 18.8.2007 has been filed on behalf of the respondents.
11. Before going into the merits of the charges levelled against the petitioner, it is necessary to refer to Regulations 25(1) and 25(4) of the LIC of India (Staff) Regulations, 1960, which is allegedly contravened by the petitioner.
''25(1) No employee shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics, nor shall he take part in, subscribe in aid or assist in any other manner, any political movement or activity".
(2) ... ... ...
(3) ... ... ...
(4) No employee shall take part in an election to any legislature or local authority.
Provided that-
i.an employee qualified to vote at such election may exercise his right to vote but, where he does so, he shall give no indication of the manner in which he proposes to vote or has voted;
ii.an employee shall not be deemed to have contravened the provisions of this regulation by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him or under any law for the time being in force;
iii.the Chairman may permit an employee to offer himself as a candidate for election to a local authority and the employee so permitted shall not be deemed to have contravened the provision of this regulation.
Explanation.: The display by an employee on his personal vehicle or residence of any electoral symbol shall amount to using his influence in connection with an election within the meaning of this sub-regulation."
(Emphasis Added)
12. In the present case, the petitioner was chargesheeted for violation of Regulation 25(4). It must be noted that the Regulation 25(1) came to be challenged before the Division Bench of the Bombay High Court in Appeal No.19 of 1965 in Life Insurance Corporation of India and others -vs- Insurance Corporation Employees' Union and another. The Division Bench headed by Kotval, C.J., by a judgment dated 19.4.1967, dismissed the appeal filed by the LIC. The following passages found in the decision may be usefully quoted:-
''In the first place, it must be stated that during normal times there appears to be no bar in any law against a Citizen taking part in any political movement or activity so long as it is peaceful and not subversive. The Regulation however prohibits not merely taking part in any political movement or activity but even assisting in any other manner any such movement or activity. The wording of the Regulation is so wide that even attending a public meeting would fall within the ambit of the Regulation and be prohibited. That would directly infringe the right conferred by Article 19(1)(b) to assemble peaceably. To that extent, therefore, the Regulation would clearly violate the right declared by Article 19(1)(b).
...... ...
Thus the Supreme Court interpreted the expression ''public order", to mean ''public peace, safety and tranquility". In that context, the explanation offered even in the affidavit of the third respondent would not justify the restriction imposed by the Regulation 25(1), for all that is there stated is that the restriction was imposed in order to see that the staff of the Corporation worked as a coherent whole without dissensions on political matters. What was sought to be prevented was their taking active part in politics. Having regard to the connotation of ''public order", as defined by the Supreme Court in the said judgment, it is impossible to hold that this would be valid justification under either clause (3) or clause (4) of Article 19. None of the other clauses of these two sub-articles has been invoked nor is it remotely suggested could be invoked, to justify the making of the Regulation 25(1). We are thus satisfied that the view which the learned Single Judge has taken as to the applicability of Article 19(1)(b) was correct and that Regulation 25(1) infringes Article 19(1)(b)."
(Emphasis Added)
13. Similar writ petitions were also filed before the High Court of Allahabad. Though the challenge was both to Regulations 25(1) and 25(4), the Division Bench of the Allahabad High Court dealt with the vires of Regulation 25(4). The decision is reported in 1970 II LLJ 393 (Shyam Lal Sharma -vs- LIC of India). The Division Bench presided by V.G.Oak, C.J., held that Regulation 25(1) and Regulation 25(4) in so far as it prohibits an employee canvassing or otherwise interfering or using his influence in connection with an election is illegal and the LIC was directed not to enforce these Regulations against its employees. In paragraphs 52 and 53, it was observed as follows:-
''52. The petitioner has established the position that the effect of clause (1) of regulation 25 and the first part of clause (4) of the regulation is to deprive him of a number of fundamental rights. The Corporation should not be permitted to enforce these invalid parts of the regulation.
53. In my opinion, the petition should be partly allowed. The respondents should be directed not to enforce against the petitioner clause (1) of regulation 25 and the following words appearing in clause (4) of regulation 25: ''canvass or otherwise interfere or use his influence in connection with or." Since the petition partly succeeds and partly fails, parties may be left to bear their own costs."
14. This matter was taken to the Supreme Court by the Life Insurance Corporation of India and it was heard along with other group of writ petitions filed by other statutory Corporations. In the judgment of the Supreme Court in Sukhdev Singh -vs- Bhagatram reported in AIR 1975 SC 1331. With reference to the appeal preferred by the LIC in Civil Appeal No.1879 of 1972, the conclusion of the Court is found in paragraph 200, which is as follows:-
''200. In Civil Appeal No.1879 of 1972, our conclusion is that the Corporation is an authority within the meaning of Article 12 of the Constitution for the reasons given in this judgment. The conclusion of the High Court that the regulations have not the force of law is set aside. The conclusion of the High Court that Corporation should not be permitted to enforce the regulations mentioned in clauses (1) and (4) of Regulation 25 is upheld."
(Emphasis Added)
15. In the light of the above, it has to be seen that whether the removal of the petitioner is justified or not. In the present case, though the contention is raised by the petitioner that Regulation 25(4) in allowing the employees to participate in local authority alone and not to legislature was violative of Article 14, in the light of the judgment of the Allahabad High Court in Shyam Lal Sharma's case (cited supra), and as confirmed by the Supreme Court in Sukhdev Singh's case (cited supra), the said argument may not be open to him.
16. Though the order of the Supreme Court as extracted from the Sukhdev Singh's case (cited supra), in paragraph 200 looks as if the entire Regulation 25(4) has been held to be ultra vires, the same cannot enure to the benefit of the petitioner. The Supreme Court in Sukhdev Singh's case, only confirmed the order of the Allahabad High Court, wherein Regulation 25(1) and very small portion of Regulation 25(4) alone have been held to be unconstitutional and, therefore, the power of the LIC to prevent the employees from participating in the election to the Legislature and Parliament cannot be said to be unconstitutional, as contended by the petitioner.
17. However, in the present case, the facts indicate that the petitioner had given a reply to the Enquiry Officer that though he had filed his nomination on 16.4.2004, he had withdrawn his nomination on 25.4.2004. But unfortunately even before he could reach the returning officer's office, the time for withdrawal is over by 3.00 p.m. and he has submitted his withdrawal requisition only at 3.10 p.m. and, therefore, it was not accepted. The fact that he gave written requisition for withdrawal of nomination is not denied by the respondents.
18. On the contrary, the petitioner has informed the domestic Enquiry Officer about his intimating the same to the first respondent. Notwithstanding the intimation, he has proceeded with the enquiry. In the present case, in the domestic enquiry, excepting the recording of the petitioner's statement, no other evidence had been let in. If the respondents want to take advantage of the petitioner's admission of the misconduct, the statement given by the petitioner in its entirety must be taken into account. They cannot rely upon bits and pieces of his statement only to suit the convenience of the respondents. The petitioner had categorically stated that after his being intimated the refusal of permission, he has withdrawn his nomination and did not contest the election nor canvassed for any votes. It was due to the technical fault of the Returning Officer, the withdrawal was not notified and his name had appeared in the ballot paper. But there is no proof that he has contested the election in the real sense of electioneering.
19. Knowing fully well the nature of the misconduct, both the competent authority and the appellate authority have stated that they want to take a lenient view, but his past misconducts have prevented them from taking such a lenient view. As rightly contended by the learned counsel for the petitioner, before the past misconduct is taken into account, they have not put the petitioner to any notice. On the contrary, the first respondent had recorded in his final order that after the show-cause notice and after receiving the explanation from the petitioner, they took note of his past misconduct suo motu and placed reliance on the past conduct as the basis for his dismissal. Otherwise, there was no necessity to state that while leniency is called for, the past conduct deters him from considering the same. The statement made in the punishment order of removal that he proved to be a permanent menace to the peace and order in the functioning of the office was totally unwarranted.
20. Regulation No.39 provides for several punishments starting from censure to dismissal and nowhere the respondents have stated as to why he was inflicted with the punishment of removal. Even the appellate authority, while reiterating the order of the competent authority (the first respondent), had stated that leniency could be shown, but the past conduct of the petitioner deters him from doing so.
21. The Supreme Court while dealing with the case of Pandian Roadways Corporation not considering the past conduct in terms of its Certified Standing Orders, dealt with the law on this question vide its judgment in Pandian Roadways Corporation Limited -vs- N.Balakrishnan reported in (2007) 9 SCC 755. Paragraphs 18 and 19 of the said judgment may be usefully extracted below:-
''18. Ordinarily, although sub-clause (5) of Clause (17) of the Certified Standing Orders is required to be complied with, the same, in our opinion, would not mean that in a given situation, there cannot be any deviation therefrom. In a case where dismissal or removal from service is to be ordinarily followed e.g. in a case of grave misconduct like misappropriation, strict enforcement of the rule may not be insisted upon. When, we say so, we are not oblivious of the law that an executive agency is ordinarily bound by the standard by which it professes its actions to be judged. (See Harjit Singh v. State of Punjab (2007) 3 SCALE 553). But where a procedural provision merely embodied the principles of natural justice, in view of the decision of this Court in State Bank of Patiala (supra), the question as to whether the principle has been followed or not, will depend upon the fact situation obtaining in each case. (See Ashok Kumar Sonkar v. Union of India (2007 (3) SCALE 517).
19. It will be useful to note that in State of Punjab v. Sukhwinder Singh (1999) SCC (L&S) 1234), this Court has held that the words gravest act of misconduct occurring in Rule 16.2(1) of the Punjab Police Rules need not be used in the order of punishment, as it can be found out from the factual matrix obtaining in each case."
(Emphasis Added)
22. Thus, it can be seen that if the present conduct does not warrant dismissal it cannot be made to be more aggravated by adding past misconducts, for which the employee had suffered sufficient punishment. Even when looking into the past conduct, the respondents could not have made a sweeping observation that since the entire conduct was so bad, he cannot continue in service. In essence, the past conduct must have some nexus or continuation to the present misconduct. The present misconduct alleged by the petitioner is purely technical in character, namely, the petitioner had attempted to contest elections contravening the Regulations. On being denied permission, he had made an abortive attempt to withdraw the said nomination, so as to escape from the wrath of further action in terms of the Service Regulations. Since the respondents themselves have considered that for the present misconduct, a leniency could have been shown, it was improper on their part to have linked it up with his past misconducts (for which the petitioner had already been punished) so as to justify their extreme punishment of dismissal.
23. Mr.Silambanan, learned Senior Counsel appearing for the respondents, by relying upon the judgment of the Supreme Court in Life Insurance Corporation of India -vs- R.Dhandapani reported in AIR 2006 SC 615, submitted that neither the High Court nor the Industrial Tribunal can justify variation of the penalty without reasons. Any relief granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence.
24. In the present case, the respondents themselves wanted to show leniency to the petitioner but for his past conduct. Whereas the petitioner had made all attempts to save himself from any disciplinary action by seeking withdrawal of his nomination. Unfortunately, that could not be done so because of the technical fault committed by the Returning Officer.
25. Looking at the long history of the challenge to the Service Regulations right from the year 1966, which was also found acceptance by the Supreme Court and the Courts have upheld the political right of the employee of a State owned Corporation, such as, LIC, the alleged misconduct committed by the petitioner will have to be seen only as a technical violation and not as a substantive misconduct. Since the respondents have not let in other evidence other than the recording of the statement of the petitioner, the explanation offered by the petitioner will have to be accepted in its entirety. Even the respondents also had wanted to show leniency but for the past misconduct. But such conduct had to be seen in its own merits.
26. In the light of these factual matrix, this Court has no hesitation to set aside the impugned order of removal passed by the respondents. The writ petition will stand allowed and the petitioner is entitled to get reinstatement. With reference to the backwages, since the petitioner had not worked during the relevant time and his work is that of a Development Officer, this Court is not inclined to grant any backwages for the period from the date of dismissal till the date of his reinstatement. But, the interregnum period shall be counted for all practical purposes including for terminal benefits. However, there will be no order as to costs. The respondents are directed to comply with this order within a period of eight weeks from the date of receipt of a copy of this order.
Brief
Citation
Judgement
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.11.2008
CORAM:
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.29284 of 2005
K.Rayar ... Petitioner
Vs
1. The Senior Divisional Manager,
(Disciplinary Authority)
Life Insurance Corporation of India,
Divisional Office, Jeevan Prakash,
Arcot Road, P.B.No.423,
Vellore-632 004.
2. The Zonal Manager,
(The Appellate Authority)
Life Insurance Corporation of India,
Southern Zonal Office,
LIC Buildings, Anna Salai,
Chennai-600 002. ... Respondents
PRAYER:- Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the first respondent Ref.No.nil dated 12.4.2005 and consequential order Ref.No.nil, dated 27.5.2005 passed by the second respondent confirming the order passed by the first respondent, quash the same and consequently direct the respondents to reinstate the petitioner into service with all backwages with service and other monetary benefits.
For petitioner : Mr. D.Rajagopal for
Mr.A.Thirumurthy
For Respondents : Mr.S.Silambanan, SC for
Mr.N.Umapathy
*****
O R D E R
Heard Mr.D.Rajagopal, learned counsel representing Mr.A.Thirumurthy, learned counsel for the petitioner and Mr.Silambanan, learned Senior Counsel appearing for Mr.N.Umapathy, learned counsel for the respondents and perused the records.
2. The writ petition is filed against the order of the first respondent dated 12.4.2005 and the consequential order passed by the second respondent dated 27.5.2005 confirming the earlier order and after setting aside the same to direct the respondents to reinstate the petitioner into service.
3. The petitioner was working as a Development Officer in the respondent Life Insurance Corporation of India (for short 'LIC'). He had put in 23 years of service in total. Initially, he worked as a LIC Agent for six years and thereafter as a Development Officer for 17 years. He claims to have conducted business as Development Officer for more than Rs.100 crores.
4. The petitioner sent a letter dated 12.3.2004 to the Union of India through proper channel seeking permission to contest the Lok Sabha elections held during 2004 and he also sought for 30 days Privilege Leave. Further, by a letter dated 16.4.2004, he informed the first respondent about the impending elections and his having submitted nomination for contesting elections from Tindivanam Constituency. By a letter dated 20.4.2004, the petitioner was informed by the first respondent that his request was not considered by a communication dated 16.4.2004 received from the Central Office.
5. The petitioner sent a further reply dated 24.4.2004 stating that he has completed his norms as an employee of the LIC and standing in the election is purely his personal affair for which the respondent cannot have any say in the matter. However, charges were framed and he was issued with a charge memo dated 29.4.2004. The charges indicated that the petitioner's filing nomination for contesting the general election from Tindivanam Lok Sabha Constituency on 16.4.2004 without permission by the competent authority was wrong and he has disregarded the directives given by the appointing authority and his writing a letter to the Ministry casting aspersions on the LIC is also objectionable.
6. Subsequently, an enquiry was ordered to be conducted by the Enquiry Officer. The Enquiry was said to have been held on 17.6.2004, in which the petitioner's statement was recorded. The petitioner had admitted that he had filed nomination on 16.4.2004 but subsequently he withdrew his nomination on 26.4.2004 at 3.10 p.m. and he had attended office on 08.5.2004 after cancelling his leave. Since the charges levelled against the petitioner were not specifically denied, the Enquiry Officer by his report dated 02.10.2004 found the petitioner guilty of the charges. After getting an explanation from the petitioner, a show-cause notice was issued to the petitioner dated 07.9.2004 stating that the first respondent had agreed with the Enquiry Report and since the petitioner was guilty of the misconduct in terms of Regulation 39 of the LIC of India (Staff) Regulations, 1960 (for short 'Regulations'), it was proposed to remove the petitioner from service. The petitioner sent a further reply dated 02.10.2004.
7. In his reply, he had stated that Regulation 25(4) permitting an employee to contest election to a local body with permission was alone provided and, therefore, not providing for contesting other elections is violative of Article 14 of the Constitution. He also sent a further reply dated 11.4.2005 requesting them not to impose any punishment. However, by an order dated 12.4.2005, the first respondent removed the petitioner from service. It was also indicated that the petitioner's past record and antecedents show that he was a permanent menace to the peace and order in the office. But the first respondent did not put the past record on notice to the petitioner, but nevertheless relied upon the same.
8. Before listing out the past misconduct, the first respondent had observed as follows:-
''AND WHEREAS, reverting back on his contention that the penalty is disproportionate to the misconduct, I prefer to take a lenient view. However, on perusing previous records, I find that the Chargesheeted Employee is grossly indisciplined and has violated Staff Regulations on several occasions in the past. Lenient views were taken on several occasions on the basis of his assurance of good conduct but his actions have exceeded all the limits and there is no reasonable ground to view his misconduct sympathetically as no action has deterred him from violating discipline of Office and Staff Regulations, as detailed below: ... ... ... ."
(Emphasis Added)
After listing out the past misconducts, the first respondent had observed as follows:-
''AND WHEREAS, from the above bad past records and grave antecedents for over a decade, he virtually proved to be a permanent menace to the peace and order in the functioning of the office, I cannot persuade myself to be lenient in reducing the penalty."
9. The petitioner preferred an appeal to the appellate authority, the second respondent herein. The appellate authority, by an order dated 27.5.2005 concurred with the competent authority and dismissed the appeal. In the penultimate paragraph of the said order, he had observed as follows:-
''However, with a view to explore the possibility of showing leniency, when I probed the past conduct of the appellant, I find that he is a chronic delinquent showing utter disregard to the rules and regulations of the Corporation. He has been chargesheeted on as many as eight occasions in the past and visited with various penalties. His plea that LIC of India (Staff) Regulations, 1960 is not applicable to him itself speaks the sanctity he attaches to the Regulations. If any leniency is extended to such a person, the interest of the Corporation will be in jeopardy and it will also send wrong signals. Hence, my interference in this case is not at all warranted and the case does not merit any leniency at my hands."
(Emphasis Added)
10. Thereafter, the petitioner filed a memorial to the Chairman of the LIC of India vide his memorial dated 06.6.2005. The Chairman of the Corporation by his order dated 12.9.2005, rejected the memorial. Though he has not challenged the order of the Chairman dismissing his memorial dated 06.6.2005, it is seen that the writ petition was filed even prior to the receipt of the memorial and the writ petition itself came to be admitted on 13.9.2005, whereas, the memorial was signed by the Chairman only on 12.9.2005 and must have reached the petitioner some time thereafter. Since the memorial was dismissed, it only reinforces the earlier orders. This Court is of the opinion that the order passed in the memorial need not be challenged separately. Though the petitioner sought for an interim order, the same was denied by this Court by an order dated 30.9.2005. A counter affidavit dated 18.8.2007 has been filed on behalf of the respondents.
11. Before going into the merits of the charges levelled against the petitioner, it is necessary to refer to Regulations 25(1) and 25(4) of the LIC of India (Staff) Regulations, 1960, which is allegedly contravened by the petitioner.
''25(1) No employee shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics, nor shall he take part in, subscribe in aid or assist in any other manner, any political movement or activity".
(2) ... ... ...
(3) ... ... ...
(4) No employee shall take part in an election to any legislature or local authority.
Provided that-
i.an employee qualified to vote at such election may exercise his right to vote but, where he does so, he shall give no indication of the manner in which he proposes to vote or has voted;
ii.an employee shall not be deemed to have contravened the provisions of this regulation by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him or under any law for the time being in force;
iii.the Chairman may permit an employee to offer himself as a candidate for election to a local authority and the employee so permitted shall not be deemed to have contravened the provision of this regulation.
Explanation.: The display by an employee on his personal vehicle or residence of any electoral symbol shall amount to using his influence in connection with an election within the meaning of this sub-regulation."
(Emphasis Added)
12. In the present case, the petitioner was chargesheeted for violation of Regulation 25(4). It must be noted that the Regulation 25(1) came to be challenged before the Division Bench of the Bombay High Court in Appeal No.19 of 1965 in Life Insurance Corporation of India and others -vs- Insurance Corporation Employees' Union and another. The Division Bench headed by Kotval, C.J., by a judgment dated 19.4.1967, dismissed the appeal filed by the LIC. The following passages found in the decision may be usefully quoted:-
''In the first place, it must be stated that during normal times there appears to be no bar in any law against a Citizen taking part in any political movement or activity so long as it is peaceful and not subversive. The Regulation however prohibits not merely taking part in any political movement or activity but even assisting in any other manner any such movement or activity. The wording of the Regulation is so wide that even attending a public meeting would fall within the ambit of the Regulation and be prohibited. That would directly infringe the right conferred by Article 19(1)(b) to assemble peaceably. To that extent, therefore, the Regulation would clearly violate the right declared by Article 19(1)(b).
...... ...
Thus the Supreme Court interpreted the expression ''public order", to mean ''public peace, safety and tranquility". In that context, the explanation offered even in the affidavit of the third respondent would not justify the restriction imposed by the Regulation 25(1), for all that is there stated is that the restriction was imposed in order to see that the staff of the Corporation worked as a coherent whole without dissensions on political matters. What was sought to be prevented was their taking active part in politics. Having regard to the connotation of ''public order", as defined by the Supreme Court in the said judgment, it is impossible to hold that this would be valid justification under either clause (3) or clause (4) of Article 19. None of the other clauses of these two sub-articles has been invoked nor is it remotely suggested could be invoked, to justify the making of the Regulation 25(1). We are thus satisfied that the view which the learned Single Judge has taken as to the applicability of Article 19(1)(b) was correct and that Regulation 25(1) infringes Article 19(1)(b)."
(Emphasis Added)
13. Similar writ petitions were also filed before the High Court of Allahabad. Though the challenge was both to Regulations 25(1) and 25(4), the Division Bench of the Allahabad High Court dealt with the vires of Regulation 25(4). The decision is reported in 1970 II LLJ 393 (Shyam Lal Sharma -vs- LIC of India). The Division Bench presided by V.G.Oak, C.J., held that Regulation 25(1) and Regulation 25(4) in so far as it prohibits an employee canvassing or otherwise interfering or using his influence in connection with an election is illegal and the LIC was directed not to enforce these Regulations against its employees. In paragraphs 52 and 53, it was observed as follows:-
''52. The petitioner has established the position that the effect of clause (1) of regulation 25 and the first part of clause (4) of the regulation is to deprive him of a number of fundamental rights. The Corporation should not be permitted to enforce these invalid parts of the regulation.
53. In my opinion, the petition should be partly allowed. The respondents should be directed not to enforce against the petitioner clause (1) of regulation 25 and the following words appearing in clause (4) of regulation 25: ''canvass or otherwise interfere or use his influence in connection with or." Since the petition partly succeeds and partly fails, parties may be left to bear their own costs."
14. This matter was taken to the Supreme Court by the Life Insurance Corporation of India and it was heard along with other group of writ petitions filed by other statutory Corporations. In the judgment of the Supreme Court in Sukhdev Singh -vs- Bhagatram reported in AIR 1975 SC 1331. With reference to the appeal preferred by the LIC in Civil Appeal No.1879 of 1972, the conclusion of the Court is found in paragraph 200, which is as follows:-
''200. In Civil Appeal No.1879 of 1972, our conclusion is that the Corporation is an authority within the meaning of Article 12 of the Constitution for the reasons given in this judgment. The conclusion of the High Court that the regulations have not the force of law is set aside. The conclusion of the High Court that Corporation should not be permitted to enforce the regulations mentioned in clauses (1) and (4) of Regulation 25 is upheld."
(Emphasis Added)
15. In the light of the above, it has to be seen that whether the removal of the petitioner is justified or not. In the present case, though the contention is raised by the petitioner that Regulation 25(4) in allowing the employees to participate in local authority alone and not to legislature was violative of Article 14, in the light of the judgment of the Allahabad High Court in Shyam Lal Sharma's case (cited supra), and as confirmed by the Supreme Court in Sukhdev Singh's case (cited supra), the said argument may not be open to him.
16. Though the order of the Supreme Court as extracted from the Sukhdev Singh's case (cited supra), in paragraph 200 looks as if the entire Regulation 25(4) has been held to be ultra vires, the same cannot enure to the benefit of the petitioner. The Supreme Court in Sukhdev Singh's case, only confirmed the order of the Allahabad High Court, wherein Regulation 25(1) and very small portion of Regulation 25(4) alone have been held to be unconstitutional and, therefore, the power of the LIC to prevent the employees from participating in the election to the Legislature and Parliament cannot be said to be unconstitutional, as contended by the petitioner.
17. However, in the present case, the facts indicate that the petitioner had given a reply to the Enquiry Officer that though he had filed his nomination on 16.4.2004, he had withdrawn his nomination on 25.4.2004. But unfortunately even before he could reach the returning officer's office, the time for withdrawal is over by 3.00 p.m. and he has submitted his withdrawal requisition only at 3.10 p.m. and, therefore, it was not accepted. The fact that he gave written requisition for withdrawal of nomination is not denied by the respondents.
18. On the contrary, the petitioner has informed the domestic Enquiry Officer about his intimating the same to the first respondent. Notwithstanding the intimation, he has proceeded with the enquiry. In the present case, in the domestic enquiry, excepting the recording of the petitioner's statement, no other evidence had been let in. If the respondents want to take advantage of the petitioner's admission of the misconduct, the statement given by the petitioner in its entirety must be taken into account. They cannot rely upon bits and pieces of his statement only to suit the convenience of the respondents. The petitioner had categorically stated that after his being intimated the refusal of permission, he has withdrawn his nomination and did not contest the election nor canvassed for any votes. It was due to the technical fault of the Returning Officer, the withdrawal was not notified and his name had appeared in the ballot paper. But there is no proof that he has contested the election in the real sense of electioneering.
19. Knowing fully well the nature of the misconduct, both the competent authority and the appellate authority have stated that they want to take a lenient view, but his past misconducts have prevented them from taking such a lenient view. As rightly contended by the learned counsel for the petitioner, before the past misconduct is taken into account, they have not put the petitioner to any notice. On the contrary, the first respondent had recorded in his final order that after the show-cause notice and after receiving the explanation from the petitioner, they took note of his past misconduct suo motu and placed reliance on the past conduct as the basis for his dismissal. Otherwise, there was no necessity to state that while leniency is called for, the past conduct deters him from considering the same. The statement made in the punishment order of removal that he proved to be a permanent menace to the peace and order in the functioning of the office was totally unwarranted.
20. Regulation No.39 provides for several punishments starting from censure to dismissal and nowhere the respondents have stated as to why he was inflicted with the punishment of removal. Even the appellate authority, while reiterating the order of the competent authority (the first respondent), had stated that leniency could be shown, but the past conduct of the petitioner deters him from doing so.
21. The Supreme Court while dealing with the case of Pandian Roadways Corporation not considering the past conduct in terms of its Certified Standing Orders, dealt with the law on this question vide its judgment in Pandian Roadways Corporation Limited -vs- N.Balakrishnan reported in (2007) 9 SCC 755. Paragraphs 18 and 19 of the said judgment may be usefully extracted below:-
''18. Ordinarily, although sub-clause (5) of Clause (17) of the Certified Standing Orders is required to be complied with, the same, in our opinion, would not mean that in a given situation, there cannot be any deviation therefrom. In a case where dismissal or removal from service is to be ordinarily followed e.g. in a case of grave misconduct like misappropriation, strict enforcement of the rule may not be insisted upon. When, we say so, we are not oblivious of the law that an executive agency is ordinarily bound by the standard by which it professes its actions to be judged. (See Harjit Singh v. State of Punjab (2007) 3 SCALE 553). But where a procedural provision merely embodied the principles of natural justice, in view of the decision of this Court in State Bank of Patiala (supra), the question as to whether the principle has been followed or not, will depend upon the fact situation obtaining in each case. (See Ashok Kumar Sonkar v. Union of India (2007 (3) SCALE 517).
19. It will be useful to note that in State of Punjab v. Sukhwinder Singh (1999) SCC (L&S) 1234), this Court has held that the words gravest act of misconduct occurring in Rule 16.2(1) of the Punjab Police Rules need not be used in the order of punishment, as it can be found out from the factual matrix obtaining in each case."
(Emphasis Added)
22. Thus, it can be seen that if the present conduct does not warrant dismissal it cannot be made to be more aggravated by adding past misconducts, for which the employee had suffered sufficient punishment. Even when looking into the past conduct, the respondents could not have made a sweeping observation that since the entire conduct was so bad, he cannot continue in service. In essence, the past conduct must have some nexus or continuation to the present misconduct. The present misconduct alleged by the petitioner is purely technical in character, namely, the petitioner had attempted to contest elections contravening the Regulations. On being denied permission, he had made an abortive attempt to withdraw the said nomination, so as to escape from the wrath of further action in terms of the Service Regulations. Since the respondents themselves have considered that for the present misconduct, a leniency could have been shown, it was improper on their part to have linked it up with his past misconducts (for which the petitioner had already been punished) so as to justify their extreme punishment of dismissal.
23. Mr.Silambanan, learned Senior Counsel appearing for the respondents, by relying upon the judgment of the Supreme Court in Life Insurance Corporation of India -vs- R.Dhandapani reported in AIR 2006 SC 615, submitted that neither the High Court nor the Industrial Tribunal can justify variation of the penalty without reasons. Any relief granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence.
24. In the present case, the respondents themselves wanted to show leniency to the petitioner but for his past conduct. Whereas the petitioner had made all attempts to save himself from any disciplinary action by seeking withdrawal of his nomination. Unfortunately, that could not be done so because of the technical fault committed by the Returning Officer.
25. Looking at the long history of the challenge to the Service Regulations right from the year 1966, which was also found acceptance by the Supreme Court and the Courts have upheld the political right of the employee of a State owned Corporation, such as, LIC, the alleged misconduct committed by the petitioner will have to be seen only as a technical violation and not as a substantive misconduct. Since the respondents have not let in other evidence other than the recording of the statement of the petitioner, the explanation offered by the petitioner will have to be accepted in its entirety. Even the respondents also had wanted to show leniency but for the past misconduct. But such conduct had to be seen in its own merits.
26. In the light of these factual matrix, this Court has no hesitation to set aside the impugned order of removal passed by the respondents. The writ petition will stand allowed and the petitioner is entitled to get reinstatement. With reference to the backwages, since the petitioner had not worked during the relevant time and his work is that of a Development Officer, this Court is not inclined to grant any backwages for the period from the date of dismissal till the date of his reinstatement. But, the interregnum period shall be counted for all practical purposes including for terminal benefits. However, there will be no order as to costs. The respondents are directed to comply with this order within a period of eight weeks from the date of receipt of a copy of this order.
Saturday, July 10, 2010
DAILY WAGER-ENQUIRY MUST FOR MISCONDUCT-JUSTICE K.CHANDRU
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.27721 of 2007
in
M.P.NO.1 OF 2007
The Management,
State Express Transport Corporation
(Tamil Nadu) Limited,
Pallavan Salai,
Chennai-600 002. .. Petitioner
Vs.
1.The Presiding Officer,
I Additional Labour Court,
Chennai-104.
2.P.Murugan .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for all relevant records pertaining to the order passed in I.D.No.586 of 1999 dated 31.7.2006 on the file of the I additional Labour Court, Chennai, the first respondent and to quash the same.
For Petitioner : Mr.L.S.M.Hassan Fizal, GA
For Respondents : Mr.V.Ajoy Khose for R2
- - - -
ORDER
Heard both sides. The writ petition is filed by the Management of the State owned Transport Corporation to challenge an Award passed by the first respondent Labour Court in I.D.No.586 of 1999, dated 31.07.2006. By the impugned Award, the Labour Court had directed reinstatement of the second respondent workman with backwages, continuity of service and other attendant benefits. The second respondent herein had filed a contempt petition No.869 of 2008, which arose out of the interim order passed by this court in the writ petition. Since both sides requested that the main writ petition itself to be taken up for final hearing, the writ petition and the contempt petition were heard together by consent of parties.
2.The writ petition was admitted on 13.12.2007. Pending the writ petition, this court directed the petitioner Corporation to pay Rs.3,300/- being the last drawn salary every month starting from 1st January, 2007 in terms of compliance under Section 17-B of the Industrial Disputes Act. It is against the non compliance of the said order, the contempt petition came to be filed.
3.It is seen from the records that the second respondent was employed as a Driver on casual basis from 3.1.1995. After two years of service when he was driving the bus on 27.6.1997 from Cuddalore to Bangalore, the bus met with an accident. It was a fatal accident, in which the bus had collided with a Tractor. Five persons travelling in the tractor were grievously injured. One of the injured person died in the hospital. The damage caused to the bus was estimated to be Rs.10,000/-. According to them, an Officer of the Corporation visited the place and reported that the incident had taken place only due to rash and negligent driving by the second respondent. In view of the said report, his services were dispensed with by an order, dated 5.7.1997.
4.The second respondent raised a dispute contending that his services cannot be dispensed with without conducting any enquiry. Since no enquiry was held, the order was opposed to principles of natural justice. If it is not based upon any misconduct, then dispensing of service would amount to retrenchment within the meaning of Section 2(oo) of the ID Act. Since condition precedent under Section 25F was violated, he is eligible for reinstatement as a matter of course.
5.The petitioner raised a dispute before the Government Labour Officer. On the strength of the failure report given by the Officer, the workman filed a claim statement before the first respondent Labour Court. The Labour Court registered the dispute as I.D.No.586 of 1999 and ordered notice to the petitioner corporation. The petitioner Corporation filed a counter statement, dated Nil (April, 2000). It was contended that the petitioner was only engaged intermittently on daily wage and due to accident, he was discharged on public interest. Before the Labour Court, on behalf of the Corporation, one Yesuraj, Senior Assistant, was examined as M.W.1 and 10 documents were filed. They were marked as Exs.M.1 to M.10. In the cross examination, M.W.1 stated that he did not know who was the person conducted investigation. The second respondent was removed from service only on the basis of the accident. He admitted that no enquiry was conducted before his discharge and that he was not an eyewitness. Further, he did not know as to who was really responsible for the accident. The labour court on the basis of this evidence came to the conclusion that since no enquiry was conducted, the discharge simpliciter will have to be taken as a retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. Further, since the condition precedents under Section 25F was not complied with, the workman was eligible to get the nomral relief.
6.In the present case, if the stand of the petitioner corporation was that they need not conduct any enquiry, then their stand was completely erroneous. If the dismissal of the second respondent was on account of accident, then it is a clear case of dismissal. Admittedly, no enquiry was conducted. Further, when a dispute was raised before the labour court, the petitioner admittedly let in evidence with one of its Officer to narrate the circumstances leading to discharge of the workman. But, they failed to utilise that opportunity to lead evidence on the merits of discharge, which they could have done.
7.The Supreme Court in Firestone tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management reported in 1973 (1) SCC 813 has held that the case of no enquiry and a vitiated enquiry stand on the same footing and the employer is entitled to lead evidence to substantiate the charge for the first time before the Court. The contention of the petitioner was that he was only engaged on daily wages cannot be accepted since the certified standing orders of the corporation do not make any distinction between casual and permanent workman in case of dismissal. In all such cases, if the termination arose out of a misconduct, then it requires an enquiry should be conducted. Since no enquiry was conducted and no legal evidence was let in, the labour court was right in holding that it was a case of termination simpliciter attracting the provisions of Section 25F of the ID Act.
8.Mr.V.Ajoy Khose, learned counsel for the second respondent relied upon a judgment of the Supreme Court in M.C.D. Vs. Praveen Kumar Jain and others reported in 1998 (9) SCC 468, where more or less in an identical situation, the Supreme Court held (in paragraph 4) as follows:
"4.....Unfortunately, for the appellant the impugned order of termination extracted above does not show that it was passed after a departmental enquiry wherein the disciplinary authority was satisfied about the said misconduct. On the contrary, it seeks to terminate the services of Respondent 1 by way of a simple discharge and not by way of any penalty. It is only during the proceedings before the Labour Court that a different stand was taken that it was by way of penalty. This stand was obviously taken by the appellant because the order of simpliciter termination would have remained still born as Section 25-F of the Industrial Disputes Act was admittedly not complied with by the appellant. With this difficulty staring in the face, a stand was taken that it was by way of penalty. If it was by way of penalty then at least a regular departmental enquiry had to be conducted. It was also required to be followed by the enquiry officer's report resulting in adverse finding against Respondent 1 and its acceptance by the disciplinary authority. Nothing of this sort was done. There is neither the enquiry officer's report holding Respondent 1 guilty of charge which in fact was never framed against him nor is there any acceptance of such a finding of the enquiry officer by the disciplinary authority. In fact the disciplinary authority has never held Respondent 1 guilty of any charge of misconduct. It is also interesting to note that while challenging the award of the Labour Court in writ petition the appellant clearly stated in para 3 of the writ petition that since Respondent 1 and Shri Mahender Kumar were merely on casual engagement/muster-roll employees and were not regular employees of the petitioner-Corporation or that of DDA, they were not entitled to a departmental inquiry as is required for the regular employees of the petitioner-Corporation. As such a stand was taken, it is obvious that the termination order based on misconduct is not the result of any departmental enquiry against Respondent 1. Consequently, the impugned order of termination would fail even on that ground. If it is a simpliciter discharge order it is violative of Section 25-F of the Industrial Disputes Act and if it is a penalty order, as contended by the appellant, it would fail on merits as not having followed the procedure of departmental enquiry. In either view of the matter, the impugned order must be held to be rightly set aside by the Labour Court and the said decision was also rightly confirmed by the High Court. "
9.In view of the fact that the petitioner corporation had failed to utilise the opportunity to lead legal evidence before the labour court, the impugned Award did not suffer from any infirmity or illegality. Hence the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed.
vvk
To
The Presiding Officer,
I Additional Labour Court,
Chennai 104
DATED : 28.06.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.27721 of 2007
in
M.P.NO.1 OF 2007
The Management,
State Express Transport Corporation
(Tamil Nadu) Limited,
Pallavan Salai,
Chennai-600 002. .. Petitioner
Vs.
1.The Presiding Officer,
I Additional Labour Court,
Chennai-104.
2.P.Murugan .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for all relevant records pertaining to the order passed in I.D.No.586 of 1999 dated 31.7.2006 on the file of the I additional Labour Court, Chennai, the first respondent and to quash the same.
For Petitioner : Mr.L.S.M.Hassan Fizal, GA
For Respondents : Mr.V.Ajoy Khose for R2
- - - -
ORDER
Heard both sides. The writ petition is filed by the Management of the State owned Transport Corporation to challenge an Award passed by the first respondent Labour Court in I.D.No.586 of 1999, dated 31.07.2006. By the impugned Award, the Labour Court had directed reinstatement of the second respondent workman with backwages, continuity of service and other attendant benefits. The second respondent herein had filed a contempt petition No.869 of 2008, which arose out of the interim order passed by this court in the writ petition. Since both sides requested that the main writ petition itself to be taken up for final hearing, the writ petition and the contempt petition were heard together by consent of parties.
2.The writ petition was admitted on 13.12.2007. Pending the writ petition, this court directed the petitioner Corporation to pay Rs.3,300/- being the last drawn salary every month starting from 1st January, 2007 in terms of compliance under Section 17-B of the Industrial Disputes Act. It is against the non compliance of the said order, the contempt petition came to be filed.
3.It is seen from the records that the second respondent was employed as a Driver on casual basis from 3.1.1995. After two years of service when he was driving the bus on 27.6.1997 from Cuddalore to Bangalore, the bus met with an accident. It was a fatal accident, in which the bus had collided with a Tractor. Five persons travelling in the tractor were grievously injured. One of the injured person died in the hospital. The damage caused to the bus was estimated to be Rs.10,000/-. According to them, an Officer of the Corporation visited the place and reported that the incident had taken place only due to rash and negligent driving by the second respondent. In view of the said report, his services were dispensed with by an order, dated 5.7.1997.
4.The second respondent raised a dispute contending that his services cannot be dispensed with without conducting any enquiry. Since no enquiry was held, the order was opposed to principles of natural justice. If it is not based upon any misconduct, then dispensing of service would amount to retrenchment within the meaning of Section 2(oo) of the ID Act. Since condition precedent under Section 25F was violated, he is eligible for reinstatement as a matter of course.
5.The petitioner raised a dispute before the Government Labour Officer. On the strength of the failure report given by the Officer, the workman filed a claim statement before the first respondent Labour Court. The Labour Court registered the dispute as I.D.No.586 of 1999 and ordered notice to the petitioner corporation. The petitioner Corporation filed a counter statement, dated Nil (April, 2000). It was contended that the petitioner was only engaged intermittently on daily wage and due to accident, he was discharged on public interest. Before the Labour Court, on behalf of the Corporation, one Yesuraj, Senior Assistant, was examined as M.W.1 and 10 documents were filed. They were marked as Exs.M.1 to M.10. In the cross examination, M.W.1 stated that he did not know who was the person conducted investigation. The second respondent was removed from service only on the basis of the accident. He admitted that no enquiry was conducted before his discharge and that he was not an eyewitness. Further, he did not know as to who was really responsible for the accident. The labour court on the basis of this evidence came to the conclusion that since no enquiry was conducted, the discharge simpliciter will have to be taken as a retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. Further, since the condition precedents under Section 25F was not complied with, the workman was eligible to get the nomral relief.
6.In the present case, if the stand of the petitioner corporation was that they need not conduct any enquiry, then their stand was completely erroneous. If the dismissal of the second respondent was on account of accident, then it is a clear case of dismissal. Admittedly, no enquiry was conducted. Further, when a dispute was raised before the labour court, the petitioner admittedly let in evidence with one of its Officer to narrate the circumstances leading to discharge of the workman. But, they failed to utilise that opportunity to lead evidence on the merits of discharge, which they could have done.
7.The Supreme Court in Firestone tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management reported in 1973 (1) SCC 813 has held that the case of no enquiry and a vitiated enquiry stand on the same footing and the employer is entitled to lead evidence to substantiate the charge for the first time before the Court. The contention of the petitioner was that he was only engaged on daily wages cannot be accepted since the certified standing orders of the corporation do not make any distinction between casual and permanent workman in case of dismissal. In all such cases, if the termination arose out of a misconduct, then it requires an enquiry should be conducted. Since no enquiry was conducted and no legal evidence was let in, the labour court was right in holding that it was a case of termination simpliciter attracting the provisions of Section 25F of the ID Act.
8.Mr.V.Ajoy Khose, learned counsel for the second respondent relied upon a judgment of the Supreme Court in M.C.D. Vs. Praveen Kumar Jain and others reported in 1998 (9) SCC 468, where more or less in an identical situation, the Supreme Court held (in paragraph 4) as follows:
"4.....Unfortunately, for the appellant the impugned order of termination extracted above does not show that it was passed after a departmental enquiry wherein the disciplinary authority was satisfied about the said misconduct. On the contrary, it seeks to terminate the services of Respondent 1 by way of a simple discharge and not by way of any penalty. It is only during the proceedings before the Labour Court that a different stand was taken that it was by way of penalty. This stand was obviously taken by the appellant because the order of simpliciter termination would have remained still born as Section 25-F of the Industrial Disputes Act was admittedly not complied with by the appellant. With this difficulty staring in the face, a stand was taken that it was by way of penalty. If it was by way of penalty then at least a regular departmental enquiry had to be conducted. It was also required to be followed by the enquiry officer's report resulting in adverse finding against Respondent 1 and its acceptance by the disciplinary authority. Nothing of this sort was done. There is neither the enquiry officer's report holding Respondent 1 guilty of charge which in fact was never framed against him nor is there any acceptance of such a finding of the enquiry officer by the disciplinary authority. In fact the disciplinary authority has never held Respondent 1 guilty of any charge of misconduct. It is also interesting to note that while challenging the award of the Labour Court in writ petition the appellant clearly stated in para 3 of the writ petition that since Respondent 1 and Shri Mahender Kumar were merely on casual engagement/muster-roll employees and were not regular employees of the petitioner-Corporation or that of DDA, they were not entitled to a departmental inquiry as is required for the regular employees of the petitioner-Corporation. As such a stand was taken, it is obvious that the termination order based on misconduct is not the result of any departmental enquiry against Respondent 1. Consequently, the impugned order of termination would fail even on that ground. If it is a simpliciter discharge order it is violative of Section 25-F of the Industrial Disputes Act and if it is a penalty order, as contended by the appellant, it would fail on merits as not having followed the procedure of departmental enquiry. In either view of the matter, the impugned order must be held to be rightly set aside by the Labour Court and the said decision was also rightly confirmed by the High Court. "
9.In view of the fact that the petitioner corporation had failed to utilise the opportunity to lead legal evidence before the labour court, the impugned Award did not suffer from any infirmity or illegality. Hence the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed.
vvk
To
The Presiding Officer,
I Additional Labour Court,
Chennai 104
EVEN IF PENSION PAID GRATUITY IS PAYABLE-JUSTICE K CHANDRU
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.21865 OF 2000
and W.M.P.NO.31690 OF 2000
The Coimbatore City Municipal Corporation
Coimbatore.
Rep. by its Commissioner .. Petitioner
Versus
1.The Joint Commissioner of Labour /
The Appellate Authority under the
Payment of Gratuity Act
Coimbatore 18.
2.The Assistant Commissioner of Labour /
The Controlling Authority under the
Payment of Gratuity Act
Coimbatore 18.
3.Tmt.Lakshmi .. Respondents
PRAYER : Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records of the first respondent pertaining to his proceedings in AGA Case No.37/98 and quash the order dated 12.07.1999.
For Petitioner : Mr.R.Sivakumar
For Respondents 1&2 : Mrs.C.K.Vishnu Priya
Additional Government Pleader
For Respondent 3 : Mr.P.K.Rajagopal
O R D E R
Heard both sides.
2.The petitioner is the Coimbatore City Municipal Corporation. They have filed the present writ petition seeking to challenge the order of the first respondent in AGA Case No.37/98 dated 12.07.1999.
3.The writ petition was admitted on 02.01.2001. Pending the writ petition, this Court did not grant any interim order and only notice was ordered on the stay application.
4.The brief facts leading to this case is as follows:-
a) The third respondent filed the Gratuity Application before the second respondent Controlling Authority. It was her case that her husband late.Palani, who was employed as a Sweeper in the petitioner Corporation from 19.12.1953, after put in 35 years of service, retired on 30.06.1988 on reaching the age of superannuation. He died on 02.01.1994. His last drawn salary was Rs.1,600/- per month.
b) The third respondent claimed full gratuity namely a sum of Rs.32,307/- as well as interest to the extent of Rs.29,076/-. The said application was taken on file as G.A.No.128/97.
c) The petitioner Corporation filed a counter statement dated 12.06.1998. It was contended that at the time of retirement, the third respondent's husband was paid Death-cum-Retirement Gratuity (DCRG) to the tune of Rs.11,148/- and no objection was raised by her. It was also stated that the Payment of Gratuity Act, 1972, will not apply to the petitioner's Corporation.
d) The Controlling Authority, by his order dated 10.08.1998 directed the petitioner Corporation to pay a sum of Rs.21,159/- to the third respondent. While ordering gratuity, he had withheld the amount of DCRG which has already been paid.
e) Therefore, the petitioner Corporation was directed to pay only Rs.21,159/- and not Rs.32,307/- as claimed by the third respondent.
f) Aggrieved by the non-payment of interest and the adjustment of DCRG, the third respondent filed an appeal. The said appeal was taken on file by the first respondent appellate authority as A.G.A.No.37/98.
g) On notice from the first respondent appellate authority, the petitioner Corporation filed a counter statement dated 30.03.1998.
h) The appellate authority, on a consideration of all the facts, held that the Payment of Gratuity Act will apply to the petitioner Corporation inasmuch as Section 14 of the Payment of Gratuity Act will override other enactments in view of the non-obstante clause found therein. Any amount withheld payable on account of the Act will be illegal and contrary to the provisions of the Act. It was also held that only because the petitioner Corporation did not pay gratuity, the third respondent had approached the authority and that if the gratuity amount was not paid on the accrued dated, then the worker is entitled to 10% interest on the amount of gratuity so withheld. Therefore, the petitioner Corporation was directed to pay 10% interest and also to pay the gratuity as per the provisions of the Act.
5.Mr.R.Sivakumar, learned counsel for the petitioner Corporation contended that inasmuch as the DCRG has already been paid, the third respondent cannot seek further gratuity and the petitioner Corporation is entitled to deduct the amount, which has already been paid.
6.In this context he relied upon the judgment of the Supreme Court in MUNICIPAL CORPORATION OF DELHI VS. DHARAM PRAKASH SHARMA & ANOTHER reported in 1998 (II) LLJ 625 = 1998 (7) SCC 221. Reliance was placed upon the following passage found in para 2 of the judgment.
"2...... The mere fact that the gratuity is provided for under the Pension Rules will not disentitle him to get the Payment of gratuity under the Payment of Gratuity Act. In view of the overriding provisions contained in Section 14 of the Payment of Gratuity Act, the provision for gratuity under Pension Rules will have no effect. Possibly for this reason, Section 5 of the Payment of Gratuity Act has conferred authority on the appropriate Government to exempt any establishment from the operation of the provisions of the Act if in its opinion the employees of such establishment are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act. Admittedly, MCD has not taken any steps to invoke the power of the Central Government under Section 5 of the Payment of Gratuity Act. In the aforesaid premises we are of the considered opinion that the employees of the MCD would be entitled to the payment of gratuity under the Payment of Gratuity Act notwithstanding the fact that the provisions of Pension Rules have been made applicable to them for the purpose of determining the pension. Needless to mention that the employees cannot claim gratuity available under Pension Rules."
(Emphasis added)
7.He also placed reliance upon the judgment of Gujarat High Court in RAJKOT MUNICIPAL CORPORATION VS. ANIRUDH FULSHANKAR SHUKLA reported in 1999 (II) LLJ 830. In that case, the Gujarat High Court, after referring to the earlier judgment of the Supreme Court, and it was held in para 6 as follows:
"6......No employee, therefore, can have a right to benefit both, under the Act and also under the pension scheme. It is, therefore, clarified that the petitioner Corporation shall be at liberty to adjust the amount of gratuity and pension paid to the concerned respondents under the pension scheme against the amount of gratuity which is payable under the impugned order. The Corporation shall also be at liberty to discontinue the payment of monthly pension to the concerned respondents."
(Emphasis added)
8.The decision of the Supreme Court in MUNICIPAL CORPORATION OF DELHI has subsequently been considered in a recent decision of the Supreme Court in 2009 AIR SCW 7667 (ALLAHABAD BANK AND ANOTHER VS. ALL INDIA ALLAHABAD BANK RETIRED EMPLOYEES' ASSOCIATION). The relevant passages from the said judgment is dealt with elsewhere in this order. In the same case, the Supreme Court has also held that unless there are exemption under the Gratuity Act, there is no power vested with anyone including the Court (Except the Government) under Section 5 of the Gratuity Act. Hence, the decision of the Delhi High Court cited by the petitioner is no longer good law.
9.On the question of interest, the counsel for the petitioner Corporation contended that since the Corporation has discharged its liability in paying DCRG, the question of delayed payment may not arise.
10.The third respondent has filed a counter affidavit dated 26.01.2001. It is stated that the order of the appellate authority does not suffer from any infirmities and the third respondent was not guilt of any delay. In respect of delay, this Court in K.P.BACKIASAMY VS. APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 AND REGIONAL LABOUR COMMISSIONER (CENTRAL), CHENNAI AND OTHERS reported in 2008 (2) LLN 246, in paragraph 8, held as follows:
"8.In the present case, when the workman sent a notice in Form I under Rule 10(1), there is no reply from the employer and they have also not settled the gratuity within the due date. While for filing an appeal, S.7(7) itself prescribes a time-limit, for presenting an application before the controlling authority, under the Rule, no delegation has been given for the State to make the rule relating to limitation. In any event, the delay in filing the application is not unduly long. On the contrary, as held by the Patna High Court in its decision reported in Mineral Area Development Authority V. State of Bihar and others [1998 (3) L.L.N. 484], the scheme of the Act must be kept in mind and it is only then, the application will have to be decided. Similar view was also expressed by the Allahabad High Court in its decision reported in Rajendra Deva V. Additional Labour Commissioner (Accounts) Kanpur cum - Appellate Authority, and another [1999(3) L.L.N. 62]........"
11.In respect of the interest calculation, it was stated that under Section 8 of the Payment of Gratuity Act, the amount of gratuity can be recovered together with compound interest at the rate specified by the Central Government and the said amount can be collected as an arrear of Land Revenue. Therefore, there is no gain in saying that the third respondent is not entitled to get any interest.
12.On the question of double payment, the Supreme Court in KHATHEEJA BAI VS. THE SUPERINTENDING ENGINEER AND OTHERS reported in 1986 (I) LLJ 314, has held as follows in paras 7 and 8(2).
"7.Dr.Chitaley invited our attention to S.14 the Payment of Gratuity Act, 1972 which provides:
"The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in an instrument or contact having effect by virtue of any enactment other than this Act.
He argued that the provision for Special Contribution under Regulation 37 was inconsistent with the provisions of the Payment of Gratuity Act and therefore, the latter should prevail to the exclusion for the former. This argument is dependant on the assumption that the Special Contribution under Regulation 37 is something as the gratuity contemplated by the Payment of Gratuity Act. We have held that it is not and the argument, therefore, fails.
8.....
In the result we direct the respondent Board to pay to the petitioner the whole of the Special Contribution under Regulation 37 which was payable to her husband and the balance of the gratuity payable under the Payment of Gratuity Act, part of which we are told has been paid leaving the sum of Rs.3167/- unpaid. These amounts should be paid to the petitioner with interest at 15% annum from the date on which the amount fell due. The respondent Board should also pay a sum of Rs.2500/- to the petitioner towards compensatory costs. We must add that the case had left us with the feeling of uneasiness and distress at the plight of helpless persons like the petitioner whose repeated representations to those in authority were left uncared for so long despite frequent pretentions of social justice."
Very recently, the Supreme Court vide its decision in ALLAHABAD BANK AND ANOTHER VS. ALL INDIA ALLAHABAD BANK RETIRED EMPLOYEES' ASSOCIATION reported in 2009 AIR SCW 7667 dealt with more or less a similar issue. The following passages found in paragraphs 14, 16, 21 and 23 may be usefully extracted below:
"14.Gratuity payable to an employee on the termination of his employment after rendering continuous service for not less than 5 years and on superannuation or retirement or resignation etc. being a statutory right cannot be taken away except in accordance with the provisions of the Act whereunder an exemption from such payment may be granted only by the appropriate Government under Section 5 of the Act which itself is a conditional power. No exemption could be granted by any Government unless it is established that the employees are in receipt of gratuity or pension benefits which are more favourable than the benefits conferred under the Act.
16.In our considered opinion pensionary benefits or the retirement benefits as the case may be whether governed by a Scheme or Rules may be a package consisting of payment of pension and as well as gratuity. Pensionary benefits may include payment of pension as well as gratuity. One does not exclude the other. Only in cases where the gratuity component in such pension schemes is in better terms in comparison to that of what an employee may get under the Payment of Gratuity Act the Government may grant an exemption and relieve the employer from the statutory obligation of payment of gratuity.
21.................The appellant being an establishment is under the statutory obligation to pay gratuity as provided for under Section 4 of the Act which is required to be read along with Section 14 of the Act which says that the provisions of the Act shall have effect notwithstanding anything inconsistent therein contained in any enactment or in any instrument or contract having effect by virtue of any enactment than this Act. The provisions of the Act prevail over all other enactment or instrument or contract so far as the payment of gratuity is concerned. The right to receive gratuity under the provisions of the Act cannot be defeated by any instrument or contract.
23.There is no material placed before us that the employees while opting for the pension scheme at the time of their superannuation/retirement either expressly or impliedly waived their statutory right to claim payment of gratuity under the provisions of the Act.............."
13.So long as the petitioner Corporation had not got any exemption under the provisions under Section 5(3), they cannot claim that the DCRG is a substitute for gratuity under the Payment of Gratuity Act or after getting the DCRG he is disentitled to receive gratuity under the Act. Further, as held by the Supreme Court, Section 14 has an overriding effect and therefore, the order of the appellate authority does not suffer from any infirmity.
14.In the light of the above, the writ petition stands dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.
08.02.2010
Index : Yes
Internet : Yes
TK
To
1.The Joint Commissioner of Labour /
The Appellate Authority under the
Payment of Gratuity Act
Coimbatore 18.
2.The Assistant Commissioner of Labour /
The Controlling Authority under the
Payment of Gratuity Act
Coimbatore 18.
K.CHANDRU, J.
TK
PRE-DELIVERY ORDER MADE IN
W.P.NO.21865 of 2000
DATED: 08.02.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.21865 OF 2000
and W.M.P.NO.31690 OF 2000
The Coimbatore City Municipal Corporation
Coimbatore.
Rep. by its Commissioner .. Petitioner
Versus
1.The Joint Commissioner of Labour /
The Appellate Authority under the
Payment of Gratuity Act
Coimbatore 18.
2.The Assistant Commissioner of Labour /
The Controlling Authority under the
Payment of Gratuity Act
Coimbatore 18.
3.Tmt.Lakshmi .. Respondents
PRAYER : Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records of the first respondent pertaining to his proceedings in AGA Case No.37/98 and quash the order dated 12.07.1999.
For Petitioner : Mr.R.Sivakumar
For Respondents 1&2 : Mrs.C.K.Vishnu Priya
Additional Government Pleader
For Respondent 3 : Mr.P.K.Rajagopal
O R D E R
Heard both sides.
2.The petitioner is the Coimbatore City Municipal Corporation. They have filed the present writ petition seeking to challenge the order of the first respondent in AGA Case No.37/98 dated 12.07.1999.
3.The writ petition was admitted on 02.01.2001. Pending the writ petition, this Court did not grant any interim order and only notice was ordered on the stay application.
4.The brief facts leading to this case is as follows:-
a) The third respondent filed the Gratuity Application before the second respondent Controlling Authority. It was her case that her husband late.Palani, who was employed as a Sweeper in the petitioner Corporation from 19.12.1953, after put in 35 years of service, retired on 30.06.1988 on reaching the age of superannuation. He died on 02.01.1994. His last drawn salary was Rs.1,600/- per month.
b) The third respondent claimed full gratuity namely a sum of Rs.32,307/- as well as interest to the extent of Rs.29,076/-. The said application was taken on file as G.A.No.128/97.
c) The petitioner Corporation filed a counter statement dated 12.06.1998. It was contended that at the time of retirement, the third respondent's husband was paid Death-cum-Retirement Gratuity (DCRG) to the tune of Rs.11,148/- and no objection was raised by her. It was also stated that the Payment of Gratuity Act, 1972, will not apply to the petitioner's Corporation.
d) The Controlling Authority, by his order dated 10.08.1998 directed the petitioner Corporation to pay a sum of Rs.21,159/- to the third respondent. While ordering gratuity, he had withheld the amount of DCRG which has already been paid.
e) Therefore, the petitioner Corporation was directed to pay only Rs.21,159/- and not Rs.32,307/- as claimed by the third respondent.
f) Aggrieved by the non-payment of interest and the adjustment of DCRG, the third respondent filed an appeal. The said appeal was taken on file by the first respondent appellate authority as A.G.A.No.37/98.
g) On notice from the first respondent appellate authority, the petitioner Corporation filed a counter statement dated 30.03.1998.
h) The appellate authority, on a consideration of all the facts, held that the Payment of Gratuity Act will apply to the petitioner Corporation inasmuch as Section 14 of the Payment of Gratuity Act will override other enactments in view of the non-obstante clause found therein. Any amount withheld payable on account of the Act will be illegal and contrary to the provisions of the Act. It was also held that only because the petitioner Corporation did not pay gratuity, the third respondent had approached the authority and that if the gratuity amount was not paid on the accrued dated, then the worker is entitled to 10% interest on the amount of gratuity so withheld. Therefore, the petitioner Corporation was directed to pay 10% interest and also to pay the gratuity as per the provisions of the Act.
5.Mr.R.Sivakumar, learned counsel for the petitioner Corporation contended that inasmuch as the DCRG has already been paid, the third respondent cannot seek further gratuity and the petitioner Corporation is entitled to deduct the amount, which has already been paid.
6.In this context he relied upon the judgment of the Supreme Court in MUNICIPAL CORPORATION OF DELHI VS. DHARAM PRAKASH SHARMA & ANOTHER reported in 1998 (II) LLJ 625 = 1998 (7) SCC 221. Reliance was placed upon the following passage found in para 2 of the judgment.
"2...... The mere fact that the gratuity is provided for under the Pension Rules will not disentitle him to get the Payment of gratuity under the Payment of Gratuity Act. In view of the overriding provisions contained in Section 14 of the Payment of Gratuity Act, the provision for gratuity under Pension Rules will have no effect. Possibly for this reason, Section 5 of the Payment of Gratuity Act has conferred authority on the appropriate Government to exempt any establishment from the operation of the provisions of the Act if in its opinion the employees of such establishment are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act. Admittedly, MCD has not taken any steps to invoke the power of the Central Government under Section 5 of the Payment of Gratuity Act. In the aforesaid premises we are of the considered opinion that the employees of the MCD would be entitled to the payment of gratuity under the Payment of Gratuity Act notwithstanding the fact that the provisions of Pension Rules have been made applicable to them for the purpose of determining the pension. Needless to mention that the employees cannot claim gratuity available under Pension Rules."
(Emphasis added)
7.He also placed reliance upon the judgment of Gujarat High Court in RAJKOT MUNICIPAL CORPORATION VS. ANIRUDH FULSHANKAR SHUKLA reported in 1999 (II) LLJ 830. In that case, the Gujarat High Court, after referring to the earlier judgment of the Supreme Court, and it was held in para 6 as follows:
"6......No employee, therefore, can have a right to benefit both, under the Act and also under the pension scheme. It is, therefore, clarified that the petitioner Corporation shall be at liberty to adjust the amount of gratuity and pension paid to the concerned respondents under the pension scheme against the amount of gratuity which is payable under the impugned order. The Corporation shall also be at liberty to discontinue the payment of monthly pension to the concerned respondents."
(Emphasis added)
8.The decision of the Supreme Court in MUNICIPAL CORPORATION OF DELHI has subsequently been considered in a recent decision of the Supreme Court in 2009 AIR SCW 7667 (ALLAHABAD BANK AND ANOTHER VS. ALL INDIA ALLAHABAD BANK RETIRED EMPLOYEES' ASSOCIATION). The relevant passages from the said judgment is dealt with elsewhere in this order. In the same case, the Supreme Court has also held that unless there are exemption under the Gratuity Act, there is no power vested with anyone including the Court (Except the Government) under Section 5 of the Gratuity Act. Hence, the decision of the Delhi High Court cited by the petitioner is no longer good law.
9.On the question of interest, the counsel for the petitioner Corporation contended that since the Corporation has discharged its liability in paying DCRG, the question of delayed payment may not arise.
10.The third respondent has filed a counter affidavit dated 26.01.2001. It is stated that the order of the appellate authority does not suffer from any infirmities and the third respondent was not guilt of any delay. In respect of delay, this Court in K.P.BACKIASAMY VS. APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 AND REGIONAL LABOUR COMMISSIONER (CENTRAL), CHENNAI AND OTHERS reported in 2008 (2) LLN 246, in paragraph 8, held as follows:
"8.In the present case, when the workman sent a notice in Form I under Rule 10(1), there is no reply from the employer and they have also not settled the gratuity within the due date. While for filing an appeal, S.7(7) itself prescribes a time-limit, for presenting an application before the controlling authority, under the Rule, no delegation has been given for the State to make the rule relating to limitation. In any event, the delay in filing the application is not unduly long. On the contrary, as held by the Patna High Court in its decision reported in Mineral Area Development Authority V. State of Bihar and others [1998 (3) L.L.N. 484], the scheme of the Act must be kept in mind and it is only then, the application will have to be decided. Similar view was also expressed by the Allahabad High Court in its decision reported in Rajendra Deva V. Additional Labour Commissioner (Accounts) Kanpur cum - Appellate Authority, and another [1999(3) L.L.N. 62]........"
11.In respect of the interest calculation, it was stated that under Section 8 of the Payment of Gratuity Act, the amount of gratuity can be recovered together with compound interest at the rate specified by the Central Government and the said amount can be collected as an arrear of Land Revenue. Therefore, there is no gain in saying that the third respondent is not entitled to get any interest.
12.On the question of double payment, the Supreme Court in KHATHEEJA BAI VS. THE SUPERINTENDING ENGINEER AND OTHERS reported in 1986 (I) LLJ 314, has held as follows in paras 7 and 8(2).
"7.Dr.Chitaley invited our attention to S.14 the Payment of Gratuity Act, 1972 which provides:
"The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in an instrument or contact having effect by virtue of any enactment other than this Act.
He argued that the provision for Special Contribution under Regulation 37 was inconsistent with the provisions of the Payment of Gratuity Act and therefore, the latter should prevail to the exclusion for the former. This argument is dependant on the assumption that the Special Contribution under Regulation 37 is something as the gratuity contemplated by the Payment of Gratuity Act. We have held that it is not and the argument, therefore, fails.
8.....
In the result we direct the respondent Board to pay to the petitioner the whole of the Special Contribution under Regulation 37 which was payable to her husband and the balance of the gratuity payable under the Payment of Gratuity Act, part of which we are told has been paid leaving the sum of Rs.3167/- unpaid. These amounts should be paid to the petitioner with interest at 15% annum from the date on which the amount fell due. The respondent Board should also pay a sum of Rs.2500/- to the petitioner towards compensatory costs. We must add that the case had left us with the feeling of uneasiness and distress at the plight of helpless persons like the petitioner whose repeated representations to those in authority were left uncared for so long despite frequent pretentions of social justice."
Very recently, the Supreme Court vide its decision in ALLAHABAD BANK AND ANOTHER VS. ALL INDIA ALLAHABAD BANK RETIRED EMPLOYEES' ASSOCIATION reported in 2009 AIR SCW 7667 dealt with more or less a similar issue. The following passages found in paragraphs 14, 16, 21 and 23 may be usefully extracted below:
"14.Gratuity payable to an employee on the termination of his employment after rendering continuous service for not less than 5 years and on superannuation or retirement or resignation etc. being a statutory right cannot be taken away except in accordance with the provisions of the Act whereunder an exemption from such payment may be granted only by the appropriate Government under Section 5 of the Act which itself is a conditional power. No exemption could be granted by any Government unless it is established that the employees are in receipt of gratuity or pension benefits which are more favourable than the benefits conferred under the Act.
16.In our considered opinion pensionary benefits or the retirement benefits as the case may be whether governed by a Scheme or Rules may be a package consisting of payment of pension and as well as gratuity. Pensionary benefits may include payment of pension as well as gratuity. One does not exclude the other. Only in cases where the gratuity component in such pension schemes is in better terms in comparison to that of what an employee may get under the Payment of Gratuity Act the Government may grant an exemption and relieve the employer from the statutory obligation of payment of gratuity.
21.................The appellant being an establishment is under the statutory obligation to pay gratuity as provided for under Section 4 of the Act which is required to be read along with Section 14 of the Act which says that the provisions of the Act shall have effect notwithstanding anything inconsistent therein contained in any enactment or in any instrument or contract having effect by virtue of any enactment than this Act. The provisions of the Act prevail over all other enactment or instrument or contract so far as the payment of gratuity is concerned. The right to receive gratuity under the provisions of the Act cannot be defeated by any instrument or contract.
23.There is no material placed before us that the employees while opting for the pension scheme at the time of their superannuation/retirement either expressly or impliedly waived their statutory right to claim payment of gratuity under the provisions of the Act.............."
13.So long as the petitioner Corporation had not got any exemption under the provisions under Section 5(3), they cannot claim that the DCRG is a substitute for gratuity under the Payment of Gratuity Act or after getting the DCRG he is disentitled to receive gratuity under the Act. Further, as held by the Supreme Court, Section 14 has an overriding effect and therefore, the order of the appellate authority does not suffer from any infirmity.
14.In the light of the above, the writ petition stands dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.
08.02.2010
Index : Yes
Internet : Yes
TK
To
1.The Joint Commissioner of Labour /
The Appellate Authority under the
Payment of Gratuity Act
Coimbatore 18.
2.The Assistant Commissioner of Labour /
The Controlling Authority under the
Payment of Gratuity Act
Coimbatore 18.
K.CHANDRU, J.
TK
PRE-DELIVERY ORDER MADE IN
W.P.NO.21865 of 2000
Subscribe to:
Posts (Atom)