(REPORTED IN 2010-1-MLJ-427)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.10.2009
CORAM:
THE HON BLE MR.JUSTICE K.CHANDRU
W.P.No.18823 of 2009 and
M.P.Nos.1 and 2 of 2009
S.Selvam ... Petitioner
Vs
1.The Deputy Inspector General of Police,
Salem Range, Salem.
2.The Deputy Superintendent of Police,
Velur Sub Division,
Namakkal District. ... Respondents
Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records in respect of the proceedings of the 2nd respondent dt 20.7.2009 in PRNO.28/B1/09/Salem/PR No.20/G1/2009 DPO and quash the same consequently direct the 2nd respondent herein to permit the petitioner herein to engage a lawyer to proceed with the oral enquiry in respect of the Charge Memo dt._03.2009 issued by the 1st respondent herein in his proceedings in PR 28/B1/2009.
For Petitioner : Mr.R.Nalliyappan
For Respondents: Mr.R.Neelakantan,G.A.
O R D E R
Heard both sides.
2. The petitioner was employed as a Grade I Police Constable. He filed the present writ petition seeking to challenge the order of the second respondent the Deputy Superintendent of Police, Vellore Sub Division, Namakkal dated 20.07.2009 and for a consequential direction to permit the petitioner to engage a lawyer and to proceed with the enquiry pursuant to the charge memo issued by the first respondent.
3. By the impugned order dated 20.07.2009, the petitioner was informed that though he was permitted to engage a lawyer to assist him in the oral enquiry, but it is subject to the condition that the lawyer should not cross examine the prosecution witness during the oral enquiry. In effect, according to the second respondent, the lawyer should be present as an observer during the oral enquiry. Therefore, the petitioner has come forward with the present writ petition.
4. Notice was issued to the respondents. The learned Government Advocate brought to the notice of this Court the judgment of the Supreme Court in D.G.Railway Protection Force and others v. K.Raghuram Babu reported in (2008) 4 SCC 406. In the said judgment, it was stated that ordinarily in a department enquiry, the charged officer cannot be represented by a lawyer and if there is some rule which permits the charged officer to be represented by someone else, permission can be granted. Such representation cannot be claimed as a matter of right. After stating so in paragraph 11, the Supreme Court observed as follows:
"11.Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute or rules/standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice."
5. There is no quarrel with the well known proposition of law that as a matter of right a Government servant cannot have the assistance of a lawyer. But in the present circumstances, it is not a question of the request of the petitioner being denied by the respondents. On the contrary, the petitioner was permitted to have a lawyer present during the department enquiry. But he has been asked not to cross examine the witness. This Court is at a loss to know after having permitted a lawyer as to how any restriction can be made about the role of the lawyer. In fact, the very purpose of utilising the assistance of a lawyer is to effectively defend the charged officer in the enquiry.
6. It is brought to the notice of this Court that the Government has issued an order in G.O.Ms.No.2769 Public Department dated 11.11.1969 that the disciplinary authority is vested with the discretion to permit the charged officer to have the assistance of a legal counsel. Therefore, in the present case, the issue is not whether the petitioner is entitled to have the assistance of a lawyer or not. On the contrary, having permitted the assistance of a lawyer, whether the lawyer should be kept idle in the course of the proceedings. A Division Bench of the Gujarat High Court vide its judgment in Navinchandra Shakerchand Shah v. Ahmedabad Co-operative Department Stores Ltd reported in 1979 1 LLJ 60, in paragraph 18 held as follows:
"18. ... The inquiry has to be in accordance with the principles of natural justice. In such a situation apart from technicality whether permission is asked for or having not been asked for, a time has come to expect the employer or his nominee to inform the employee of his rights. If thereafter the employee does not avail of the opportunity, no grievance could be made. And here the petitioner as required by cl.(4) had a right to cross-examine witnesses. Sitting in law Courts day in and day out we know what the art of cross-examination is and few have mastery over it. Do we expect this petitioner to cross examine witnesses on his own, unaided and unhelped by anyone? We are aware of the fact that another workman of his department would have hardly improved the matter, but two together could have put up some show of cross-examination and Udesing could have been cross-examined. If a party is required to showcause and has a right to cross-examine witnesses, such a right would be illusory if it is required to be exercised by lay persons Vide B.E.Supply Co. v. The Workmen, (supra)..."
7. Therefore, the presence of the legal counsel cannot be an idle spectator. But it must have some nexus with the discretion exercised by the respondent. Once a legal counsel is allowed to appear on behalf of a charged officer, he is entitled to exercise the power as a lawyer and effectively defend his client in the enquiry.
8. Therefore, the impugned order in so far as it refuses the engaged lawyer to cross examine the witness is hereby set aside. The writ petition stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.
23.10.2009
svki
Index : Yes/No
Internet:Yes/No
K.CHANDRU,J.
Svki
To
1.The Deputy Inspector General of Police,
Salem Range, Salem.
2.The Deputy Superintendent of Police,
Velur Sub Division,
Namakkal District.
W.P.No.18823 of 2009 and
M.P.Nos.1 and 2 of 2009
23.10.200
IMPORTANT ISSUES/JUDGEMENTS ON LABOUR, HUMAN RIGHTS AND SOCIAL ASPECTS CAN BE ACCESSED IN THIS BLOG-P.ESAKKIMUTHU,CITU ON "LABOUR"
Wednesday, June 8, 2011
K.CHANDRU JUDGEMENT ON APPLICABILITY OF PERMANANCY ACT, UNFAIR LABOUR PRACTICE
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 22..7..2008
Coram:
The Hon'ble Mr. Justice K.CHANDRU
W.P. Nos. 37547 of 2005 and 12772 of 2006
W.P. No. 37547 of 2005:-
1. Hindustan Petroleum Corporation Ltd.
Rep. by its Chairman cum Managing Director
17 Jameshedji Tata Road
Mumbai
2. Hindustan Petroleum Corporation Ltd.
Rep. by its General Manager
4th Floor
Thalamuthu Natarajan Building
Gandhi Irwin Road
Egmore
Chennai .. Petitiones
vs.
1. The Presiding Officer
Central Government Labour Court
cum Industrial Tribunal
Shastri Bhavan
Chennai
2. The Regional Secretary
Petroleum Workers Union
Hindustan Petroleum Corporation Ltd.
Egmore
Chennai
3. G. Karmegam
4. G. Sekar Babu
5. J. Irudayaraj
6. A. Rajkumar
7. K. Williams
8. S. Egambaram
9. K. Vadivel
10. P.S. Irudayaraj .. Respondents
Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent relating to Award dated 14.3.2005 and made in I.D. No. 311 of 2004 and quash the same.
W.P. No. 12772 of 2006:-
1. G. Karmegam
2. G. Sekar Babu
3. J. Irudayaraj
4. A. Rajkumar
5. K. Williams
6. S. Egambaram
7. K. Vadivel
8. P.S. Irudayaraj .. Petitioners
vs.
1. Hindustan Petroleum Corporation Ltd.
Rep. by its Chairman cum Managing Director
17 Jameshedji Tata Road
Mumbai
2. Hindustan Petroleum Corporation Ltd.
Rep. by its General Manager
4th Floor
Thalamuthu Natarajan Building
Gandhi Irwin Road
Egmore, Chennai
3. The Presiding Officer
Central Government Labour Court
cum Industrial Tribunal
Shastri Bhavan
Chennai
4. The Regional Secretary
Petroleum Workers Union
Hindustan Petroleum Corporation Ltd.
Egmore, Chennai .. Respondents
Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records on the file of the third respondent, to quash that portion 'directing regularisation from the date of retrenchment' in the Award dated 14.3.2005 and made in I.D. No. 311 of 2004 as confirmed by order dated 19.9.2005 made in I.A. No. 239 of 2005 in I.D. No. 311 of 2004 by declaring and modifying the order as 'directing regularisation of service of the petitioners from the date of completing 480 days of service with the second respondent.
For Management : Mr. G. Masilamani, AG
for M/s King and Patridge
For workmen : Mr. K.V. Ananthakrushnan
C O M M O N O R D E R
W.P. No. 37547 of 2005 is filed by the Hindustan Petroleum Corporation Limited [for short, 'HPCL'], a Public Sector Undertaking, against the Award dated 14.3.2005 passed by the Central Government Industrial Tribunal cum Labour Court, Chennai [for short, 'CGIT'] in I.D. No. 311 of 2004 in granting relief of regularisation to the respondents 3 to 10 from the date of their alleged retrenchment with all attendant benefits including backwages quantified at 50%.
2. W.P. No. 12772 of 2006 is filed by eight workmen challenging the very same Award dated 14.3.2005 as well as the order dated 19.9.2005 made in I.A. No. 239 of 2005 and seeks for regularisation of their service from the date of completion of 480 days of service of their service, which was denied by the CGIT.
3. The writ petition filed by the Management of the HPCL was admitted on 21.11.2005 and an interim stay was granted on the same day. Subsequently, when the workmen filed a petition for vacating the stay, this Court, vide order dated 26.4.2006, directed the HPCL to pay Rs.6175/- to each of the workmen every month starting from October 2005 and that the arrears was to be made within a period of four weeks from the date of receipt of a copy of that order and if the workmen are not restored to duty on or before 15.5.2006, the HPCL was further directed to continue to pay monthly salaries in terms of Section 17B of the Industrial Disputes Act, 1947 [for short, 'I.D. Act'].
4. In view of the interconnectivity between these two writ petitions, the matters were taken up together and a common order is being passed.
5. Heard the arguments of Mr. G. Masilamani, learned Advocate General appearing for M/s King and Patridge, representing the HPCL and Mr. K.V. Ananthakrushnan, learned counsel appearing for the workmen and perused the records. For the sake of convenience, the Management is referred to as 'HPCL' and the eight individual workmen are referred to as the 'workmen'.
6. It is the case of the workmen that they were engaged for cleaning toilets, house keeping, sweeping, maintaining the Lunch Room and bringing the lunch and tiffin to their offices at Egmore and Meenambakkam in Chennai and they have been working since the year 1989 in the case of four persons, in the case of one Vadivelu since 1985, in the case of one P.S. Iudayaraj since 1987, in the case of one A. Rajkumar since 1992 and in the case of one S. Egambaram since 1997.
7. The Government of India, vide their notification issued under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 [for short, 'CLRA Act'], on and from 09.12.1976, prohibited employment of contract labour relating to sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the CLRA Act is the Central Government. Subsequently, the Supreme Court in Air India Statutory Corporation v. United Labour Union [1997 (9) SCC 377] held that even though there is no express provision in the CLRA Act for absorption of the contract labour when engagement of contract labour stood prohibited on publication of the notification under Section 10(1) of the Act, from that moment the principal employer cannot continue contract labour and direct relationship between them and the principal employer gets established between the workmen and the principal employer and in that view of the matter, for any contract workman engaged in violation of provisions of the CLRA Act, they can get a direction to absorb the employee of the principal establishment.
8. Taking advantage of the said judgment, the workmen, who were engaged in contract by the HPCL at Bangalore, Bombay, Vishakapattinam and Mangalore filed wit petitions and it was allowed by the respective High Courts and those workmen have been absorbed by the HPCL.
9. Similarly, the workmen through their Trade Union, by name, Petroleum Workers Union, filed a writ petition being W.P. No. 12297 of 1998 before this Court and sought for absorption as direct workmen. Pending the writ petition, this Court, vide order dated 18.8.1998, granted an injunction not to terminate the services of the workmen. During the pendency of the writ petition, they also moved the authority under CLRA Act, viz., Deputy Chief Labour Commissioner (Central), Bangalore, under Rule 25(2)(V)(a) and (b) of the CL(R&A) Central Rules, 1971 seeking for payment on par with the workmen directly engaged by HPCL as the CLRA Act guarantees the same payment even if workmen were engaged as contract labour and the principal employer, by virtue of Section 21(4) of the CLRA Act was bound to make the payment. But the authority, by his order dated 23.3.2000, held that since neither the HPCL nor the so-called contractors were engaging more than 20 workers, the CLRA Act will not be applicable. Therefore, the only remedy available to the Union was to move the machinery to enforce the Government Order dated 09.12.1976 prohibiting contract labour.
10. The workmen did not pursue their remedy against the said order. In the meanwhile, HPCL charge-sheeted the Regional Secretary of the Trade Union (by name, R. Govindarajan), who was also an employee of the HPCL, by a Charge memorandum dated 28.12.1999 for having taken the issue before the Deputy Chief Labour Commissioner claiming parity of wages for the contract workmen and also seeking for their absorption in a writ petition before this Court. Even though such an act was contemnatious, they proceeded with an enquiry and imposed a punishment of stoppage of two increments with cumulative effect vide order dated 25.4.2001. He was also transferred from Chennai to Vadalur in Cuddalore District (the punishment order was marked as Ex. W.98 before the CGIT).
11. In view of the punishment imposed on the Secretary of the Trade Union, the workmen, apprehending that their case may not be prosecuted properly, filed an impleadment petition being W.M.P. No. 63298 of 2002. This Court, by an order dated 03.3.2003, allowed the application and ordered the workmen to be impleaded as petitioners 2 to 9.
12. Subsequently, the judgment of the Supreme Court in Air India Statutory Corporation case (cited supra) came to be overruled by a Constitution Bench of the Supreme Court in Steel Authority of India Ltd. and others v. National Union Waterfront Workers and others [2001 (7) SCC 1]. The Notification dated 09.12.1976 issued by the Central Government abolishing contract labour was also set aside by the Supreme Court. The following passages found in paragraphs 125(3) to 125(6) and in paragraph 126 of the said judgment may be usefully reproduced as it will have a bearing on the present writ petitions:-
Para 125: "(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) We overrule the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
Para 126: We have used the expression industrial adjudicator by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review."
13. In the light of the later development of law, the writ petition filed by the workmen (W.P. No. 12297 of 1998) was dismissed with the following directions as found in paragraph 18 of the said order:-
"In the result, the writ petition is disposed of with the following observations:-
(i) The third respondent / Union Government is directed to frame and refer the disputes between the workers and respondents 1 and 2 under Section 10 of the Industrial Disputes Act to the appropriate forum namely, Industrial Tribunal or the Labour Court at Chennai, within a period of four weeks form the date of receipt of a copy of this order.
(ii) The appropriate authority Industrial Tribunal / Labour Court shall proceed thereon to adjudicate the reference in accordance with law and pass an award within a period of four months form the date of receipt of the order of reference. The said authority is also directed to consider the mutual contentions independently without being influenced by any of the observations made in this order. The appropriate authority has to find out the real nature of the engagement of the petitioners / employees and the relief to which they are entitled to in accordance with law.
(iii) Respondents 1 and 2 are directed to retain the petitioners / employees in service on the same terms and conditions as on date, without prejudice to the contentions of both sides."
14. In view of the direction issued by this Court, the Central Government, vide its order dated 19.02.2004 referred the industrial dispute for adjudication by the CGIT, Chennai. The point for adjudication as mentioned in the order of reference reads as follows:-
"Whether the industrial dispute raised by Petroleum Workers Union against the management of Hindustan Petroleum Corporation Ltd. for regularisation of services of eight workmen as mentioned in the Annexure and also for other relief claimed in Writ Petition No. 12297 of 1998 is justified? If so, to what relief the concerned workmen are entitled?"
15. It was thereafter, a Writ Appeal was filed against the order of the learned Judge in W.A. No. 627 of 2004. The Division Bench of this Court took note of the subsequent reference made by the Central Government and, therefore, declined to interfere with the order. But, however, it modified the continued retention of the workmen and paragraph 2 of the said judgment of the Division Bench reads as follows:-
"Having regard to the arguments of either counsel and having regard to the facts and circumstances of the case, we dispose of this writ appeal with a direction to the Central Government Industrial Tribunal cum Labour Court, Chennai to dispose of the industrial dispute referred by the Central Government in its reference dated 19.02.2004 within four months from the date of receipt of a copy of this order, after affording opportunity of hearing to either party. Pending the same, the eight members of the writ petitioner Union namely., 1. G. Sekar, 2. G. Karmegam, 3. J. Irudayaraj, 4.A.Rajkumar, 5. S. Egambaram, 6. K. Vadivelu, 7. K. Williams and 8. S. Irudayaraj, who are respondents 2 to 9 herein, shall be paid the existing wages for a period of four months Should there be a delay in disposing of the industrial dispute, then either party can mention to this Court, apart from the making such request before the Central Government Industrial Tribunal cum Labour Court itself. It is needless to mention that if the industrial dispute ends in favour of the workmen, then the appellants have to abide by the said award of the Industrial Tribunal cum Labour Court, and even if any appointment is made in place of the workmen in the meantime, they have to pave way for the induction of the respondents workmen...."
[Emphasis added]
16. It was thereafter, the CGIT took up the dispute as I.D. No. 311 of 2004 and issued notice to the HPCL. In the meanwhile, the workmen, without any necessity, moved the Central Government for an amendment of the reference by requesting that the individual workmen should also be made as parties to the dispute. But when they did not get any reply, they filed an application being I.A. No. 69 of 2004 before the CGIT seeking for impleadment of the eight workmen as petitioners in addition to the Trade Union. Though it was resisted by the HPCL, the CGIT allowed the said I.A. by an order dated 14.7.2004 and the workmen were also made as petitioners 2 to 9 in the said Industrial Dispute.
17. In the affidavit filed in support of the writ petition, in paragraph 7, a contention was raised that the impleadment of the workmen by the CGIT was erroneous and the HPCL reserved its right to challenge the said order at an appropriate stage meaning, after the Award was passed. In view of the said averment, the learned Advocate General argued that the CGIT has no power to implead any party and the dispute is only between the Trade Union and the Management and the individual workers have no right of say in collective industrial dispute. But, however, it is found from the prayer made in the present writ petition no such attack is made against the order dated 14.7.2004 made in I.A. No. 69 of 2004 and the certified copy of the I.A. order has also not been filed. Hence, they cannot be permitted to raise such an issue without proper pleadings. Even otherwise, under Section 18(3) of the I.D. Act, when an Award is binding on a party, the Tribunal has power to implead any party, who is proper and necessary to the dispute. The power of the Tribunal to implead a new party has been approved by the Supreme Court vide its judgment in Hochtief Gammon v. Industrial Tirbunal, Bhubaneshwar, Orissa and others [1964 (2) L.L.J. 460].
18. In the present case, apprehending that the Union may not pursue the dispute, the workmen were allowed to come on record in the earlier writ petition filed before this Court. Further, the Union leader himself was charge-sheeted by the HPCL (as found in Ex. W.98) for taking up the issue by the workmen herein. During the trial before CGIT, the trade Union had also remained ex-parte as found in paragraph 3 of the impugned Award.
19. A Division Bench of this Court vide its judgment in The Special Officer of the Management of T.U.C.S. Ltd. v. S.Loganathan [1986 (II) L.L.J. 225] upheld the right of the individual workmen to challenge an Award passed by the Industrial adjudicator on the ground that the individual workers, who are aggrieved by the Award, are entitled to question it even in their individual capacity. Therefore, the objection raised by the learned Advocate General with reference to the impleadment of the workmen in the Industrial Dispute has to be necessarily overruled and it is accordingly, overruled.
20. Before the CGIT, on behalf of the workmen, three witnesses were examined as W.W.1 to W.W.3 and 198 documents were filed which were marked as Exs. W.1 to W.198. On the side of the HPCL, three witnesses were examined as M.W.1 to M.W.3 and 57 documents were filed which were marked as Exs. M.1 to M.57. The CGIT, on an analysis of the evidence (both oral and documentary), came to the conclusion that the so-called contractors examined as M.W.2 and M.W.3 are fake and the contract entered into between them and the contractors M/s T.M. Gurusamy M.W.3 and A. Kasper M.W.2 and P.S. Irudayaraj W.W.3 was sham and nominal and the workmen are employees of the HPCL. After having recorded the said finding, the CGIT held that the workmen are entitled for relief of regularisation from the date of their retrenchment with all the attendant benefits including 50% of the backwages.
21. Finding that the CGIT had not given full relief, the workmen filed I.A. No. 239 of 2005 before the CGIT and sought for correcting the error and also for directing their regularisation from the date of completion of 480 days' within a period of 24 calendar months. This was stoutly resisted by the HPCL. Thereafter, the CGIT, by an order dated 19.9.2005, dismissed the said I.A. holding that there was no error in the Award passed by it and if at all the Union is aggrieved, they will have to challenge the same before an higher forum. Therefore, the workmen have filed the writ petition being W.P. No. 12772 of 2006 as noted above.
22. The learned Advocate General, attacking the Award made the following submissions before this Court:-
(a) The workmen were contract workers. Even in the pleadings in the writ petition filed before this Court, they have admitted that they were contract workers and, therefore, they cannot turn back and make an argument that the contract is sham and nominal;
(b) The workmen were continued in service by virtue of the interim order of this Court dated 18.8.1998 and, therefore, anything done after the said interim order cannot be taken note of for the purpose of deciding whether the contract is sham and nominal;
(c) Since the establishment of HPCL had not engaged more than 20 contract labourers and the contractors also have not engaged more than 20 contract labourers in terms of the CLRA Act, there is no prohibition for engagement of contract labour and there is no employer employee relationship between the workmen and the HPCL;
(d) The fact that the HPCL paid Provident Fund contributions and ESI contributions to the workmen will not create any relationship between the workmen and the HPCL as under those two enactments, the obligation is on the principal employer to make contributions.
(e) The question of regularisation of the workmen will not arise as their entry into service was not proper and no Court can direct their absorption when their initial entry was improper; and
(f) The provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (T.N. Act 46 of 1981) will not apply to the HPCL.
23. It must be stated that the Division Bench, when approached by the HPCL, vide its order dated 25.3.2004, clearly directed that if the Industrial Dispute ends in favour of the workmen, then the HPCL should abide by the said Award. Even after getting such a direction, it is not fair for the HPCL to challenge the impugned Award before this Court.
24. In any event, the learned Advocate General submitted that in L. Justine and another v. Registrar of Co-operative Societies, Chennai [2002 (4) CTC 385], this Court held that the back door entry of workmen cannot be permitted and the provisions of the T.N. Act 46 of 1981 cannot be pressed into service in such cases. The issue was also taken before the Supreme Court in A.Umarani v. Registrar, Co-operative Societies and others [2004 (7) SCC 112] and the judgment of the Division Bench was confirmed. Learned Advocate General placed strong reliance upon paragraphs 39 and 40 of the said judgment to emphasis that those who came by back door should go through that door and that regularisation cannot give permanency to an employee whose services are adhoc in nature.
25. He also placed reliance upon the Constitution Bench judgment of the Supreme Court in Secretary, State of Karnataka v. Uma Devi (3) reported in 2006 (4) SCC 1 to reiterate the very same point. It must be noted that even in Uma Devi (3)'s case (cited supra), the Supreme Court in paragraph 45, had observed as follows:-
Para 45: ".... A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term...."
Therefore, it is not as if the Uma Devi (3)'s case (cited supra) has prohibited employment of workmen in contract or temporary and it only states that while making regularisation, proper norms will have to be followed consistent with Articles 14 and 16 of the Constitution.
26. The learned Advocate General also referred to the decision of the Supreme Court in Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd. [2007 (1) SCC 408] and submitted that the rules of recruitment cannot be relaxed and the Court / Tribunal cannot direct regularisation to temporary employees dehors the Rules (See: page 430).
27. The learned Advocate General also referred to the judgment of the Supreme Court in Dena Nath and others v. National Fertilisers Ltd. and others [AIR 1992 SC 457] for the proposition that a contract labour employed does not become direct employee of the principal employer merely because the contractor does not hold any licence under the CLRA Act.
28. Considering these arguments, it must be stated that the the Constitution Bench of the Supreme Court in the SAIL Case (cited supra) had categorically laid down in paragraphs 125 - (3) to (6) and 126 (as extracted above), the parameters under which an industrial adjudicator can decide the claims of the workmen. In such cases, it was also held that in case of a sham and nominal contract, the employer cannot contend that it was still a contract and the Court has no power to order relief to such workmen. Therefore, that position of law has not been so far diluted in the subsequent pronouncement of the Supreme Court.
29. Though the learned Advocate General tried to contend that there is no statutory bar for engaging labour on contract and outsourcing is the modern trend in employment, it must be stated that under the existing law, there is limitations in doing so. The workmen in HPCL are governed by certified standing orders (CSO) framed under the Industrial Employment (Standing Orders) Act, 1946. In that CSO, there is no provision to engage any contract labour and Courts have held that any contract in violation of Certified Standing Orders will be void. (See: Western India Match Co. Ltd. v. Its Workmen reported in 1973 (2) L.L.J. 403 (S.C.)].
30. Further, "Unfair Labour Practice" in any forum is prohibited under Section 25T of the I.D. Act and violation of which is punishable under Section 25U of the said Act. The term "Unfair Labour Practice" is defined under Section 2(ra) r/w V Schedule to the I.D. Act. Part I of the V Schedule lists out the Unfair Labour practices prohibited to be committed by an employer. Item No. 10 of Part I reads as follows:-
"to employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
Hence, commission of such an unfair labour practice by the employer is prohibited by the I.D. Act. In this Award, the finding of the CGIT was that the work in which workmen were engaged was of a permanent and perennial in nature.
31. It must also be stated that the Supreme Court in U.P. State Electricity Board v. Pooran Chandra Pandey & others [2007 AIR SCW 6904] referred to Uma Devi (3)'s case (cited supra) and observed in paragraphs 11, 16 and 17 and 19, which may be usefully extracted below:-
Para 11: "Learned counsel for the appellant has relied upon the decision of this Court in Secretary, State of Karnataka & Ors vs. Uma Devi (3) & Ors (2006) 4 SCC 1 and has urged that no direction for regularization can be given by the Court. In our opinion, the decision in Uma Devi's case (supra) is clearly distinguishable. The said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution."
Para 16: "We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi's case (supra) is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's case (supra) inapplicable to the facts of that case.
Para 17: In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-`-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board "in the same manner and position". Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devi's case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution."
Para 19: "In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years' service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face."
32. Very recently, (vide its judgment dated 16.5.2008), the Supreme Court in G.M., O.N.G.C., Shilchar v. O.N.G.C. Contractual Workers Union [2008 AIR SCW 3996] had reviewed the previous case laws and in paragraphs 11 to 18, the Court held as follows:-
Para 11: "It will be seen therefore that each case has to be examined to a very large extent on its specific facts, and a universal yardstick should not be attempted.
Para 12: In the instant case, on a consideration of material produced before it, the Tribunal came to the following conclusions:
(1) That there existed a relationship of master and servant.
(2) That there was no contractor appointed by
ONGC.
(3) That the ONGC used to supervise and allot
works to individual workers.
(4) That the ONGC took disciplinary action and
called for explanations from the workers.
(5) The workers were paid wages though they did not attend their duties due to Cachar Bandh and due to flood.
(6) The wages were paid direct to the workers by the ONGC and the acquaintance roll was prepared by the Management to make payment to the workmen".
Para 13: It has also been observed that even the ONGC had admitted that since 1988, there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor, Manik has been named. The Tribunal then opined that it appeared from the record that Manik himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received wages. We find that the real issue was as to the status of the workmen as employees of the ONGC or of the contractor, and it having been found that the workmen were the employees of the ONGC they would ipso-facto be entitled to all benefits available in that capacity, and the issue of regularization would, therefore, pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted above. We, therefore, find that the ratio of the judgment in Uma Devi's case (supra) would not be applicable and that the facts of Pandey's case are on the contrary more akin to the facts of the present one.
Para 14: We are therefore of the opinion that in the light of the aforesaid observations, Mr. Dave's argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case.
Para 15: We have also considered Mr. Dave's argument with regard to the nature of the reference. We re-produce the reference as made:
"Whether the demand of the ONGC `Contractual Workers' Union, Silchar on the management of ONGC, Cachar Project, Silchar for regularization of the services of the contractual workers is justified. If so, what relief are the workmen concerned entitled to?"
Para 16: It is true that the underlined portion of the reference prima facie does give the impression that it pre-supposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it.
Para 17: In Delhi Cloth & General Mils Co. Ltd. vs. The workmen & Others AIR 1967 SC 469, this is what the Court had to say:
"In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else".
Para 18: The pleadings in the present matter would show that the core issue before the Tribunal was with regard to the status of the employees as employees of the ONGC or of the contractor and that it was this issue simpliciter on which the parties went to trial. Mr. Dave's argument with regard to the decision of the Tribunal being beyond the reference, is to our mind, and in the circumstances, hyper technical. In this background, we feel that the judgments cited by Mr. Dave pertaining to regularization of contract labour are not applicable to the facts of the case."
33. Therefore, the present issue will have to be decided in the light of the parameters indicated by the latest decision of the Supreme Court in O.N.G.C. Case (cited supra) which had taken note of all the contentions raised by the learned Advocate General. The sum and substance of the decisions are that if it is established that the workmen were employed directly by HPCL, even on temporary basis, they are eligible for regularisation provided it is shown that they have not come through any back door. One such back door entry as indicated in the decisions of the Supreme Court in Uma Rani and Uma Devi (3)'s cases (cited supra) is not getting the names sponsored through the Employment Exchange.
34. Admittedly, the workmen were all either sweepers or scavengers or cleaners. Under Section 3 of the the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, any employment to do unskilled office work has been exempted from the purview of the said Act. It is also not shown that the workmen were not appointed by the appropriate authority.
35. A Division Bench of this Court in School Committee, Tilak Vidyalaya Higher Secondary School, Kallakurichi v. District Educational Officer, Tirunelveli [1991 TLNJ 1] has held that an Office Helper need not come
through the Employment Exchange and his appointment cannot be considered to be in violation of the 1959 Act.
36. On the question of non-application of the Tamil Nadu Act 46 of 1981, as argued by the learned Advocate General, it must be stated that the HPCL is an establishment coming under Section 2(6) of the Tamil Nadu Shops and Establishments Act, 1947 [for short, 'TNSE Act']. The term 'Commercial establishment' found in the said sub-section is further defined in Section 2(3) of the TNSE Act which includes a clerical department of a factory or even a joint stock company. HPCL is certainly covered by Section 2(6) r/w Section 2(3) of the TNSE Act and, therefore, it is automatically covered by the provisions of the Conferment of Permanent Status to Workman Act, 1981. Such a contention with reference to a joint stock company raised by the HPCL was rejected by this Court in S. Ramanathan v. Saroja Mills Ltd., Madurai and another [1977 (II) L.L.J. 202]. Even otherwise, the office at Egmore is the clerical wing of the HPCL storages which are registered under the Factories Act by HPCL. Therefore, the argument of the learned Advocate General cannot be accepted.
37. Further, it must also be that the constitutional validity of the Tamil Nadu Act 46 of 1981 was upheld by the Supreme Court vide its judgment in State of Tamil Nadu v. Nellai Cotton Mills Ltd. and others [1990 (2) SCC 518].
38. Once there is a valid State enactment providing for relief to such of those workmen deemed permanency to those who had completed 480 days' of service within a period of two calendar years then, such workmen getting permanent status cannot be questioned by any Management. Such conferment of permanent status to the workmen cannot be labelled as violation of Articles 14 and 16 of the Constitution. The effect of a local enactment conferring permanent status to workmen was never considered by any Court so far.
39. Therefore, the only point that will have to be decided in the present case is whether the findings of the CGIT in recording that the so-called contracts under which the workmen were engaged, were 'sham and nominal'. If the answer to the question is in the affirmative, then the workmen can have the benefit of the Award impugned in the writ petition.
40. As already stated, before the CGIT, a wealth of documents were filed by the workmen and oral evidence was also let in even by one of the so-called contractor, viz., the 10th respondent P.S. Irudayaraj, who had deposed that there was no contract between him and the HPCL and that he himself was rendering physical service to the HPCL. With regard to the other finding that the contract between the so-called contractors and the HPCL was only sham and nominal, the CGIT has held that the workmen in Bombay and Vishakapattinam who were doing similar work in the HPCL, were absorbed in those areas. As found in the ONGC, Shilchar case, this is a violation of Article 14 of the Constitution by the HPCL.
41. In the present case, the workmen have been working from 1989 till 1998 without any break and they were not under the control of the so-called contractors. The HPCL was directly supervising their work. It also held that the work was perennial since for any establishment, the up-keep of the establishment is important even though under law, there was no requirement of holding any licence for a contractor, who supplies labour. In the present case, the issue is slightly different wherein the workmen were directly engaged by the HPCL, who supervised the work and controlled all their activities.
42. Though the HPCL claimed that as the principal employer they have paid the EPF and ESIC contributions in each of the agreements with the so-called contractors, they have specified that the contractors must be responsible for the EPF and ESIC contributions. This was not adhered to. Further, it was the HPCL which forwarded all the applications for part-withdrawal of PF to the authorities and the so-called contractors never initiated any such move.
43. The contract made between the HPCL and W.W.3, M.W.2 and M.W.3 is clearly sham and nominal. The agreements produced before the CGIT show the nature of duties to be performed by the men supplied by the so-called contractor. There are many instances in which the same workmen were sent out for work with outside agencies such as Sales Tax Department, Government Secretariat and Book shops for getting stationery and books as if they are the office boys of the HPCL and the scope of such work was never specified in the agreement. For doing such work, in some of the authorisation letters, the workmen were described as the staff of HPCL.
44. The contract agreements produced as exhibits show that it was for labour supply agreement. But in real term, the so-called contractor himself was doing the work. In one case, there was no other worker other than the alleged contractor himself was doing the work. This was spoken to by the alleged contractors who had deposed as W.W.2 and W.W.3.
45. It was also from Exs. W.93 and W.94 that the payment of wages was directly paid to the workmen by the HPCL and signatures were obtained from them in the records of the HPCL. Though the said contract did not provide for any Bonus, such payments were made to workmen as found in the documents produced by the workmen. Except contending that the workmen were contract labourers and relying upon the so-called agreements, the HPCL did not acquit itself to show that they were proper agreements. On the contrary, the workmen's evidence both oral and documentary clearly shows that the contracts were mere sham and nominal. It was a finding of fact recorded by the CGIT and such findings cannot be assailed in a writ petition under Article 226 of the Constituion.
46. In this context, it is necessary to refer to the decision of the Supreme Court in Workmen of English
Electric Company of India Ltd. v. Presiding Officer and another [1990 (2) SCC 18]. The relevant passage found in paragraph 8 of the judgment may be usefully extracted below:-
Para 8: ".... While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the material on the record and decide as to which part of the claim was tenable. The finding of the Tribunal that 131 workmen had put in more than 240 days of work was arrived at on the basis of some evidence; it may be that better particulars and clear evidence should have been placed before the Tribunal. Quantum of evidence or appreciation thereof for recording findings of fact would not come within the purview of High Court s extraordinary jurisdiction under Article 226 of the Constitution...."
47. The HPCL's contention was that the pleadings of the workmen were not consistent and before this Court they have stated that they were contract workmen. But in the light of the changing decisions of the Supreme Court, such pleadings will become inevitable. In the writ petition, they heavily banked on the Air India Statutory Corporation Case (cited supra). But the learned Judge, while directing the matter to be tried by the Tribunal, removed all misconceptions and directed the matter to be dealt with afresh. The learned Judge even recorded a finding that the order of the Deputy Chief Labour Commissioner under the CLRA Act does not help either side. Even the Supreme Court in SAIL's case (cited supra) has indicated the parameters of decision making by the industrial adjudicators and hence, the matter will have to be dealt with afresh in the light of the said judgment.
48. In the present case, the role of HPCL in hounding out a Union General Secretary with a charge-sheet and a resultant punishment and a transfer to far off place for pursuing the case of the workmen and coupled with the fact that the Union remained ex-parte before the CGIT will only show that there
was bound to be minor contradictions in the stand of the workmen. Their plight in this regard is understandable.
49. The HPCL never denied in their pleadings regarding the workmen in Mumbai and Vizag, who were similarly placed, were regularised in view of the Air India Statutory Corporation case (cited supra). In Industrial Law, the "region cum industry" principle is applicable and the HPCL, being an all India Organisation, cannot take shifting stand depending upon the region in which it operates. Considering that most of these workmen had continuously worked before the interim order for over ten years in a work which is perennial in nature, their demand for regularisation can never be termed to be illegal or unjust.
50. In the light of the above materials, the finding of fact rendered by the CGIT regarding the contract between the workmen and the HPCL being sham and nominal, the impugned Award is fully in consonance with the legal precedents referred to above. Further, the Tribunal, conscious of its power, had limited the backwages at 50% to be paid to the workmen.
51. But while ordering the regularisation only from the date of retrenchment, the CGIT did not keep in mind the relevant legal provisions, viz., the effect of the Tamil Nadu Act 46 of 1981, which guarantees permanency if a workman completes 480 days' of service within a period of 24 calendar months. Pending the adjudication of the regularisation issue, the HPCL could not have dispensed with the service of the workmen without getting prior approval form the CGIT under Section 33(2)(b) of the I.D. Act. Such violation by the HPCL will clearly make their non-employment void ab initio and the position of law in this regard has been well-settled by a Constitution Bench judgment of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others [2002 (2) SCC 244]. In that case, the Supreme Court has held in paragraph 14 that the workman need not challenge such a dispensation from service with any independent proceedings.
52. Therefore, the payment of salary for four months from 25.3.2004, viz., the date of receipt of the order of the Division Bench, cannot help the case of the HPCL. The Division Bench itself had stated that in the event of the workmen succeeding, the HPCL should abide by the Award. As held in the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. case (cited supra),any termination pending the adjudication without approval under Section 33(2)(b) of the I.D. Act will become void ab initio. Therefore, the CGIT was wrong in directing regularisation only from the date of the retrenchment, viz., July 2004, and it should be in accordance with the mandate of Tamil Nadu Act 46 of 1981, which is applicable to HPCL.
53. In the light of the above, the writ petition W.P. No. 37547 of 2005 filed by the HPCL will stand dismissed with costs. The cost is quantified at Rs.1000/- to be paid to each of the workmen (respondents 3 to 10) towards the cost of litigation, which has been pending since 1998 for a period of ten years.
54. W.P. No. 12772 of 2006 filed by the workmen will stand allowed. The Award of the CGIT dated 14.3.2005 made in I.D. No. 311 of 2004 will stand modified to the extent indicated above. The workmen are entitled to get their regularisation from the date on which each of them had completed 480 days' of service within a period of 24 calendar months together with 50% of the backwages ordered by the CGIT.
gri
To
The Presiding Officer
Central Government Labour Court cum Industrial Tribunal
Shastri Bhavan,
Chennai
Dated 22..7..2008
Coram:
The Hon'ble Mr. Justice K.CHANDRU
W.P. Nos. 37547 of 2005 and 12772 of 2006
W.P. No. 37547 of 2005:-
1. Hindustan Petroleum Corporation Ltd.
Rep. by its Chairman cum Managing Director
17 Jameshedji Tata Road
Mumbai
2. Hindustan Petroleum Corporation Ltd.
Rep. by its General Manager
4th Floor
Thalamuthu Natarajan Building
Gandhi Irwin Road
Egmore
Chennai .. Petitiones
vs.
1. The Presiding Officer
Central Government Labour Court
cum Industrial Tribunal
Shastri Bhavan
Chennai
2. The Regional Secretary
Petroleum Workers Union
Hindustan Petroleum Corporation Ltd.
Egmore
Chennai
3. G. Karmegam
4. G. Sekar Babu
5. J. Irudayaraj
6. A. Rajkumar
7. K. Williams
8. S. Egambaram
9. K. Vadivel
10. P.S. Irudayaraj .. Respondents
Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent relating to Award dated 14.3.2005 and made in I.D. No. 311 of 2004 and quash the same.
W.P. No. 12772 of 2006:-
1. G. Karmegam
2. G. Sekar Babu
3. J. Irudayaraj
4. A. Rajkumar
5. K. Williams
6. S. Egambaram
7. K. Vadivel
8. P.S. Irudayaraj .. Petitioners
vs.
1. Hindustan Petroleum Corporation Ltd.
Rep. by its Chairman cum Managing Director
17 Jameshedji Tata Road
Mumbai
2. Hindustan Petroleum Corporation Ltd.
Rep. by its General Manager
4th Floor
Thalamuthu Natarajan Building
Gandhi Irwin Road
Egmore, Chennai
3. The Presiding Officer
Central Government Labour Court
cum Industrial Tribunal
Shastri Bhavan
Chennai
4. The Regional Secretary
Petroleum Workers Union
Hindustan Petroleum Corporation Ltd.
Egmore, Chennai .. Respondents
Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records on the file of the third respondent, to quash that portion 'directing regularisation from the date of retrenchment' in the Award dated 14.3.2005 and made in I.D. No. 311 of 2004 as confirmed by order dated 19.9.2005 made in I.A. No. 239 of 2005 in I.D. No. 311 of 2004 by declaring and modifying the order as 'directing regularisation of service of the petitioners from the date of completing 480 days of service with the second respondent.
For Management : Mr. G. Masilamani, AG
for M/s King and Patridge
For workmen : Mr. K.V. Ananthakrushnan
C O M M O N O R D E R
W.P. No. 37547 of 2005 is filed by the Hindustan Petroleum Corporation Limited [for short, 'HPCL'], a Public Sector Undertaking, against the Award dated 14.3.2005 passed by the Central Government Industrial Tribunal cum Labour Court, Chennai [for short, 'CGIT'] in I.D. No. 311 of 2004 in granting relief of regularisation to the respondents 3 to 10 from the date of their alleged retrenchment with all attendant benefits including backwages quantified at 50%.
2. W.P. No. 12772 of 2006 is filed by eight workmen challenging the very same Award dated 14.3.2005 as well as the order dated 19.9.2005 made in I.A. No. 239 of 2005 and seeks for regularisation of their service from the date of completion of 480 days of service of their service, which was denied by the CGIT.
3. The writ petition filed by the Management of the HPCL was admitted on 21.11.2005 and an interim stay was granted on the same day. Subsequently, when the workmen filed a petition for vacating the stay, this Court, vide order dated 26.4.2006, directed the HPCL to pay Rs.6175/- to each of the workmen every month starting from October 2005 and that the arrears was to be made within a period of four weeks from the date of receipt of a copy of that order and if the workmen are not restored to duty on or before 15.5.2006, the HPCL was further directed to continue to pay monthly salaries in terms of Section 17B of the Industrial Disputes Act, 1947 [for short, 'I.D. Act'].
4. In view of the interconnectivity between these two writ petitions, the matters were taken up together and a common order is being passed.
5. Heard the arguments of Mr. G. Masilamani, learned Advocate General appearing for M/s King and Patridge, representing the HPCL and Mr. K.V. Ananthakrushnan, learned counsel appearing for the workmen and perused the records. For the sake of convenience, the Management is referred to as 'HPCL' and the eight individual workmen are referred to as the 'workmen'.
6. It is the case of the workmen that they were engaged for cleaning toilets, house keeping, sweeping, maintaining the Lunch Room and bringing the lunch and tiffin to their offices at Egmore and Meenambakkam in Chennai and they have been working since the year 1989 in the case of four persons, in the case of one Vadivelu since 1985, in the case of one P.S. Iudayaraj since 1987, in the case of one A. Rajkumar since 1992 and in the case of one S. Egambaram since 1997.
7. The Government of India, vide their notification issued under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 [for short, 'CLRA Act'], on and from 09.12.1976, prohibited employment of contract labour relating to sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the CLRA Act is the Central Government. Subsequently, the Supreme Court in Air India Statutory Corporation v. United Labour Union [1997 (9) SCC 377] held that even though there is no express provision in the CLRA Act for absorption of the contract labour when engagement of contract labour stood prohibited on publication of the notification under Section 10(1) of the Act, from that moment the principal employer cannot continue contract labour and direct relationship between them and the principal employer gets established between the workmen and the principal employer and in that view of the matter, for any contract workman engaged in violation of provisions of the CLRA Act, they can get a direction to absorb the employee of the principal establishment.
8. Taking advantage of the said judgment, the workmen, who were engaged in contract by the HPCL at Bangalore, Bombay, Vishakapattinam and Mangalore filed wit petitions and it was allowed by the respective High Courts and those workmen have been absorbed by the HPCL.
9. Similarly, the workmen through their Trade Union, by name, Petroleum Workers Union, filed a writ petition being W.P. No. 12297 of 1998 before this Court and sought for absorption as direct workmen. Pending the writ petition, this Court, vide order dated 18.8.1998, granted an injunction not to terminate the services of the workmen. During the pendency of the writ petition, they also moved the authority under CLRA Act, viz., Deputy Chief Labour Commissioner (Central), Bangalore, under Rule 25(2)(V)(a) and (b) of the CL(R&A) Central Rules, 1971 seeking for payment on par with the workmen directly engaged by HPCL as the CLRA Act guarantees the same payment even if workmen were engaged as contract labour and the principal employer, by virtue of Section 21(4) of the CLRA Act was bound to make the payment. But the authority, by his order dated 23.3.2000, held that since neither the HPCL nor the so-called contractors were engaging more than 20 workers, the CLRA Act will not be applicable. Therefore, the only remedy available to the Union was to move the machinery to enforce the Government Order dated 09.12.1976 prohibiting contract labour.
10. The workmen did not pursue their remedy against the said order. In the meanwhile, HPCL charge-sheeted the Regional Secretary of the Trade Union (by name, R. Govindarajan), who was also an employee of the HPCL, by a Charge memorandum dated 28.12.1999 for having taken the issue before the Deputy Chief Labour Commissioner claiming parity of wages for the contract workmen and also seeking for their absorption in a writ petition before this Court. Even though such an act was contemnatious, they proceeded with an enquiry and imposed a punishment of stoppage of two increments with cumulative effect vide order dated 25.4.2001. He was also transferred from Chennai to Vadalur in Cuddalore District (the punishment order was marked as Ex. W.98 before the CGIT).
11. In view of the punishment imposed on the Secretary of the Trade Union, the workmen, apprehending that their case may not be prosecuted properly, filed an impleadment petition being W.M.P. No. 63298 of 2002. This Court, by an order dated 03.3.2003, allowed the application and ordered the workmen to be impleaded as petitioners 2 to 9.
12. Subsequently, the judgment of the Supreme Court in Air India Statutory Corporation case (cited supra) came to be overruled by a Constitution Bench of the Supreme Court in Steel Authority of India Ltd. and others v. National Union Waterfront Workers and others [2001 (7) SCC 1]. The Notification dated 09.12.1976 issued by the Central Government abolishing contract labour was also set aside by the Supreme Court. The following passages found in paragraphs 125(3) to 125(6) and in paragraph 126 of the said judgment may be usefully reproduced as it will have a bearing on the present writ petitions:-
Para 125: "(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) We overrule the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
Para 126: We have used the expression industrial adjudicator by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review."
13. In the light of the later development of law, the writ petition filed by the workmen (W.P. No. 12297 of 1998) was dismissed with the following directions as found in paragraph 18 of the said order:-
"In the result, the writ petition is disposed of with the following observations:-
(i) The third respondent / Union Government is directed to frame and refer the disputes between the workers and respondents 1 and 2 under Section 10 of the Industrial Disputes Act to the appropriate forum namely, Industrial Tribunal or the Labour Court at Chennai, within a period of four weeks form the date of receipt of a copy of this order.
(ii) The appropriate authority Industrial Tribunal / Labour Court shall proceed thereon to adjudicate the reference in accordance with law and pass an award within a period of four months form the date of receipt of the order of reference. The said authority is also directed to consider the mutual contentions independently without being influenced by any of the observations made in this order. The appropriate authority has to find out the real nature of the engagement of the petitioners / employees and the relief to which they are entitled to in accordance with law.
(iii) Respondents 1 and 2 are directed to retain the petitioners / employees in service on the same terms and conditions as on date, without prejudice to the contentions of both sides."
14. In view of the direction issued by this Court, the Central Government, vide its order dated 19.02.2004 referred the industrial dispute for adjudication by the CGIT, Chennai. The point for adjudication as mentioned in the order of reference reads as follows:-
"Whether the industrial dispute raised by Petroleum Workers Union against the management of Hindustan Petroleum Corporation Ltd. for regularisation of services of eight workmen as mentioned in the Annexure and also for other relief claimed in Writ Petition No. 12297 of 1998 is justified? If so, to what relief the concerned workmen are entitled?"
15. It was thereafter, a Writ Appeal was filed against the order of the learned Judge in W.A. No. 627 of 2004. The Division Bench of this Court took note of the subsequent reference made by the Central Government and, therefore, declined to interfere with the order. But, however, it modified the continued retention of the workmen and paragraph 2 of the said judgment of the Division Bench reads as follows:-
"Having regard to the arguments of either counsel and having regard to the facts and circumstances of the case, we dispose of this writ appeal with a direction to the Central Government Industrial Tribunal cum Labour Court, Chennai to dispose of the industrial dispute referred by the Central Government in its reference dated 19.02.2004 within four months from the date of receipt of a copy of this order, after affording opportunity of hearing to either party. Pending the same, the eight members of the writ petitioner Union namely., 1. G. Sekar, 2. G. Karmegam, 3. J. Irudayaraj, 4.A.Rajkumar, 5. S. Egambaram, 6. K. Vadivelu, 7. K. Williams and 8. S. Irudayaraj, who are respondents 2 to 9 herein, shall be paid the existing wages for a period of four months Should there be a delay in disposing of the industrial dispute, then either party can mention to this Court, apart from the making such request before the Central Government Industrial Tribunal cum Labour Court itself. It is needless to mention that if the industrial dispute ends in favour of the workmen, then the appellants have to abide by the said award of the Industrial Tribunal cum Labour Court, and even if any appointment is made in place of the workmen in the meantime, they have to pave way for the induction of the respondents workmen...."
[Emphasis added]
16. It was thereafter, the CGIT took up the dispute as I.D. No. 311 of 2004 and issued notice to the HPCL. In the meanwhile, the workmen, without any necessity, moved the Central Government for an amendment of the reference by requesting that the individual workmen should also be made as parties to the dispute. But when they did not get any reply, they filed an application being I.A. No. 69 of 2004 before the CGIT seeking for impleadment of the eight workmen as petitioners in addition to the Trade Union. Though it was resisted by the HPCL, the CGIT allowed the said I.A. by an order dated 14.7.2004 and the workmen were also made as petitioners 2 to 9 in the said Industrial Dispute.
17. In the affidavit filed in support of the writ petition, in paragraph 7, a contention was raised that the impleadment of the workmen by the CGIT was erroneous and the HPCL reserved its right to challenge the said order at an appropriate stage meaning, after the Award was passed. In view of the said averment, the learned Advocate General argued that the CGIT has no power to implead any party and the dispute is only between the Trade Union and the Management and the individual workers have no right of say in collective industrial dispute. But, however, it is found from the prayer made in the present writ petition no such attack is made against the order dated 14.7.2004 made in I.A. No. 69 of 2004 and the certified copy of the I.A. order has also not been filed. Hence, they cannot be permitted to raise such an issue without proper pleadings. Even otherwise, under Section 18(3) of the I.D. Act, when an Award is binding on a party, the Tribunal has power to implead any party, who is proper and necessary to the dispute. The power of the Tribunal to implead a new party has been approved by the Supreme Court vide its judgment in Hochtief Gammon v. Industrial Tirbunal, Bhubaneshwar, Orissa and others [1964 (2) L.L.J. 460].
18. In the present case, apprehending that the Union may not pursue the dispute, the workmen were allowed to come on record in the earlier writ petition filed before this Court. Further, the Union leader himself was charge-sheeted by the HPCL (as found in Ex. W.98) for taking up the issue by the workmen herein. During the trial before CGIT, the trade Union had also remained ex-parte as found in paragraph 3 of the impugned Award.
19. A Division Bench of this Court vide its judgment in The Special Officer of the Management of T.U.C.S. Ltd. v. S.Loganathan [1986 (II) L.L.J. 225] upheld the right of the individual workmen to challenge an Award passed by the Industrial adjudicator on the ground that the individual workers, who are aggrieved by the Award, are entitled to question it even in their individual capacity. Therefore, the objection raised by the learned Advocate General with reference to the impleadment of the workmen in the Industrial Dispute has to be necessarily overruled and it is accordingly, overruled.
20. Before the CGIT, on behalf of the workmen, three witnesses were examined as W.W.1 to W.W.3 and 198 documents were filed which were marked as Exs. W.1 to W.198. On the side of the HPCL, three witnesses were examined as M.W.1 to M.W.3 and 57 documents were filed which were marked as Exs. M.1 to M.57. The CGIT, on an analysis of the evidence (both oral and documentary), came to the conclusion that the so-called contractors examined as M.W.2 and M.W.3 are fake and the contract entered into between them and the contractors M/s T.M. Gurusamy M.W.3 and A. Kasper M.W.2 and P.S. Irudayaraj W.W.3 was sham and nominal and the workmen are employees of the HPCL. After having recorded the said finding, the CGIT held that the workmen are entitled for relief of regularisation from the date of their retrenchment with all the attendant benefits including 50% of the backwages.
21. Finding that the CGIT had not given full relief, the workmen filed I.A. No. 239 of 2005 before the CGIT and sought for correcting the error and also for directing their regularisation from the date of completion of 480 days' within a period of 24 calendar months. This was stoutly resisted by the HPCL. Thereafter, the CGIT, by an order dated 19.9.2005, dismissed the said I.A. holding that there was no error in the Award passed by it and if at all the Union is aggrieved, they will have to challenge the same before an higher forum. Therefore, the workmen have filed the writ petition being W.P. No. 12772 of 2006 as noted above.
22. The learned Advocate General, attacking the Award made the following submissions before this Court:-
(a) The workmen were contract workers. Even in the pleadings in the writ petition filed before this Court, they have admitted that they were contract workers and, therefore, they cannot turn back and make an argument that the contract is sham and nominal;
(b) The workmen were continued in service by virtue of the interim order of this Court dated 18.8.1998 and, therefore, anything done after the said interim order cannot be taken note of for the purpose of deciding whether the contract is sham and nominal;
(c) Since the establishment of HPCL had not engaged more than 20 contract labourers and the contractors also have not engaged more than 20 contract labourers in terms of the CLRA Act, there is no prohibition for engagement of contract labour and there is no employer employee relationship between the workmen and the HPCL;
(d) The fact that the HPCL paid Provident Fund contributions and ESI contributions to the workmen will not create any relationship between the workmen and the HPCL as under those two enactments, the obligation is on the principal employer to make contributions.
(e) The question of regularisation of the workmen will not arise as their entry into service was not proper and no Court can direct their absorption when their initial entry was improper; and
(f) The provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (T.N. Act 46 of 1981) will not apply to the HPCL.
23. It must be stated that the Division Bench, when approached by the HPCL, vide its order dated 25.3.2004, clearly directed that if the Industrial Dispute ends in favour of the workmen, then the HPCL should abide by the said Award. Even after getting such a direction, it is not fair for the HPCL to challenge the impugned Award before this Court.
24. In any event, the learned Advocate General submitted that in L. Justine and another v. Registrar of Co-operative Societies, Chennai [2002 (4) CTC 385], this Court held that the back door entry of workmen cannot be permitted and the provisions of the T.N. Act 46 of 1981 cannot be pressed into service in such cases. The issue was also taken before the Supreme Court in A.Umarani v. Registrar, Co-operative Societies and others [2004 (7) SCC 112] and the judgment of the Division Bench was confirmed. Learned Advocate General placed strong reliance upon paragraphs 39 and 40 of the said judgment to emphasis that those who came by back door should go through that door and that regularisation cannot give permanency to an employee whose services are adhoc in nature.
25. He also placed reliance upon the Constitution Bench judgment of the Supreme Court in Secretary, State of Karnataka v. Uma Devi (3) reported in 2006 (4) SCC 1 to reiterate the very same point. It must be noted that even in Uma Devi (3)'s case (cited supra), the Supreme Court in paragraph 45, had observed as follows:-
Para 45: ".... A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term...."
Therefore, it is not as if the Uma Devi (3)'s case (cited supra) has prohibited employment of workmen in contract or temporary and it only states that while making regularisation, proper norms will have to be followed consistent with Articles 14 and 16 of the Constitution.
26. The learned Advocate General also referred to the decision of the Supreme Court in Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd. [2007 (1) SCC 408] and submitted that the rules of recruitment cannot be relaxed and the Court / Tribunal cannot direct regularisation to temporary employees dehors the Rules (See: page 430).
27. The learned Advocate General also referred to the judgment of the Supreme Court in Dena Nath and others v. National Fertilisers Ltd. and others [AIR 1992 SC 457] for the proposition that a contract labour employed does not become direct employee of the principal employer merely because the contractor does not hold any licence under the CLRA Act.
28. Considering these arguments, it must be stated that the the Constitution Bench of the Supreme Court in the SAIL Case (cited supra) had categorically laid down in paragraphs 125 - (3) to (6) and 126 (as extracted above), the parameters under which an industrial adjudicator can decide the claims of the workmen. In such cases, it was also held that in case of a sham and nominal contract, the employer cannot contend that it was still a contract and the Court has no power to order relief to such workmen. Therefore, that position of law has not been so far diluted in the subsequent pronouncement of the Supreme Court.
29. Though the learned Advocate General tried to contend that there is no statutory bar for engaging labour on contract and outsourcing is the modern trend in employment, it must be stated that under the existing law, there is limitations in doing so. The workmen in HPCL are governed by certified standing orders (CSO) framed under the Industrial Employment (Standing Orders) Act, 1946. In that CSO, there is no provision to engage any contract labour and Courts have held that any contract in violation of Certified Standing Orders will be void. (See: Western India Match Co. Ltd. v. Its Workmen reported in 1973 (2) L.L.J. 403 (S.C.)].
30. Further, "Unfair Labour Practice" in any forum is prohibited under Section 25T of the I.D. Act and violation of which is punishable under Section 25U of the said Act. The term "Unfair Labour Practice" is defined under Section 2(ra) r/w V Schedule to the I.D. Act. Part I of the V Schedule lists out the Unfair Labour practices prohibited to be committed by an employer. Item No. 10 of Part I reads as follows:-
"to employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
Hence, commission of such an unfair labour practice by the employer is prohibited by the I.D. Act. In this Award, the finding of the CGIT was that the work in which workmen were engaged was of a permanent and perennial in nature.
31. It must also be stated that the Supreme Court in U.P. State Electricity Board v. Pooran Chandra Pandey & others [2007 AIR SCW 6904] referred to Uma Devi (3)'s case (cited supra) and observed in paragraphs 11, 16 and 17 and 19, which may be usefully extracted below:-
Para 11: "Learned counsel for the appellant has relied upon the decision of this Court in Secretary, State of Karnataka & Ors vs. Uma Devi (3) & Ors (2006) 4 SCC 1 and has urged that no direction for regularization can be given by the Court. In our opinion, the decision in Uma Devi's case (supra) is clearly distinguishable. The said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution."
Para 16: "We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi's case (supra) is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's case (supra) inapplicable to the facts of that case.
Para 17: In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-`-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board "in the same manner and position". Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devi's case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution."
Para 19: "In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years' service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face."
32. Very recently, (vide its judgment dated 16.5.2008), the Supreme Court in G.M., O.N.G.C., Shilchar v. O.N.G.C. Contractual Workers Union [2008 AIR SCW 3996] had reviewed the previous case laws and in paragraphs 11 to 18, the Court held as follows:-
Para 11: "It will be seen therefore that each case has to be examined to a very large extent on its specific facts, and a universal yardstick should not be attempted.
Para 12: In the instant case, on a consideration of material produced before it, the Tribunal came to the following conclusions:
(1) That there existed a relationship of master and servant.
(2) That there was no contractor appointed by
ONGC.
(3) That the ONGC used to supervise and allot
works to individual workers.
(4) That the ONGC took disciplinary action and
called for explanations from the workers.
(5) The workers were paid wages though they did not attend their duties due to Cachar Bandh and due to flood.
(6) The wages were paid direct to the workers by the ONGC and the acquaintance roll was prepared by the Management to make payment to the workmen".
Para 13: It has also been observed that even the ONGC had admitted that since 1988, there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor, Manik has been named. The Tribunal then opined that it appeared from the record that Manik himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received wages. We find that the real issue was as to the status of the workmen as employees of the ONGC or of the contractor, and it having been found that the workmen were the employees of the ONGC they would ipso-facto be entitled to all benefits available in that capacity, and the issue of regularization would, therefore, pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted above. We, therefore, find that the ratio of the judgment in Uma Devi's case (supra) would not be applicable and that the facts of Pandey's case are on the contrary more akin to the facts of the present one.
Para 14: We are therefore of the opinion that in the light of the aforesaid observations, Mr. Dave's argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case.
Para 15: We have also considered Mr. Dave's argument with regard to the nature of the reference. We re-produce the reference as made:
"Whether the demand of the ONGC `Contractual Workers' Union, Silchar on the management of ONGC, Cachar Project, Silchar for regularization of the services of the contractual workers is justified. If so, what relief are the workmen concerned entitled to?"
Para 16: It is true that the underlined portion of the reference prima facie does give the impression that it pre-supposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it.
Para 17: In Delhi Cloth & General Mils Co. Ltd. vs. The workmen & Others AIR 1967 SC 469, this is what the Court had to say:
"In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else".
Para 18: The pleadings in the present matter would show that the core issue before the Tribunal was with regard to the status of the employees as employees of the ONGC or of the contractor and that it was this issue simpliciter on which the parties went to trial. Mr. Dave's argument with regard to the decision of the Tribunal being beyond the reference, is to our mind, and in the circumstances, hyper technical. In this background, we feel that the judgments cited by Mr. Dave pertaining to regularization of contract labour are not applicable to the facts of the case."
33. Therefore, the present issue will have to be decided in the light of the parameters indicated by the latest decision of the Supreme Court in O.N.G.C. Case (cited supra) which had taken note of all the contentions raised by the learned Advocate General. The sum and substance of the decisions are that if it is established that the workmen were employed directly by HPCL, even on temporary basis, they are eligible for regularisation provided it is shown that they have not come through any back door. One such back door entry as indicated in the decisions of the Supreme Court in Uma Rani and Uma Devi (3)'s cases (cited supra) is not getting the names sponsored through the Employment Exchange.
34. Admittedly, the workmen were all either sweepers or scavengers or cleaners. Under Section 3 of the the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, any employment to do unskilled office work has been exempted from the purview of the said Act. It is also not shown that the workmen were not appointed by the appropriate authority.
35. A Division Bench of this Court in School Committee, Tilak Vidyalaya Higher Secondary School, Kallakurichi v. District Educational Officer, Tirunelveli [1991 TLNJ 1] has held that an Office Helper need not come
through the Employment Exchange and his appointment cannot be considered to be in violation of the 1959 Act.
36. On the question of non-application of the Tamil Nadu Act 46 of 1981, as argued by the learned Advocate General, it must be stated that the HPCL is an establishment coming under Section 2(6) of the Tamil Nadu Shops and Establishments Act, 1947 [for short, 'TNSE Act']. The term 'Commercial establishment' found in the said sub-section is further defined in Section 2(3) of the TNSE Act which includes a clerical department of a factory or even a joint stock company. HPCL is certainly covered by Section 2(6) r/w Section 2(3) of the TNSE Act and, therefore, it is automatically covered by the provisions of the Conferment of Permanent Status to Workman Act, 1981. Such a contention with reference to a joint stock company raised by the HPCL was rejected by this Court in S. Ramanathan v. Saroja Mills Ltd., Madurai and another [1977 (II) L.L.J. 202]. Even otherwise, the office at Egmore is the clerical wing of the HPCL storages which are registered under the Factories Act by HPCL. Therefore, the argument of the learned Advocate General cannot be accepted.
37. Further, it must also be that the constitutional validity of the Tamil Nadu Act 46 of 1981 was upheld by the Supreme Court vide its judgment in State of Tamil Nadu v. Nellai Cotton Mills Ltd. and others [1990 (2) SCC 518].
38. Once there is a valid State enactment providing for relief to such of those workmen deemed permanency to those who had completed 480 days' of service within a period of two calendar years then, such workmen getting permanent status cannot be questioned by any Management. Such conferment of permanent status to the workmen cannot be labelled as violation of Articles 14 and 16 of the Constitution. The effect of a local enactment conferring permanent status to workmen was never considered by any Court so far.
39. Therefore, the only point that will have to be decided in the present case is whether the findings of the CGIT in recording that the so-called contracts under which the workmen were engaged, were 'sham and nominal'. If the answer to the question is in the affirmative, then the workmen can have the benefit of the Award impugned in the writ petition.
40. As already stated, before the CGIT, a wealth of documents were filed by the workmen and oral evidence was also let in even by one of the so-called contractor, viz., the 10th respondent P.S. Irudayaraj, who had deposed that there was no contract between him and the HPCL and that he himself was rendering physical service to the HPCL. With regard to the other finding that the contract between the so-called contractors and the HPCL was only sham and nominal, the CGIT has held that the workmen in Bombay and Vishakapattinam who were doing similar work in the HPCL, were absorbed in those areas. As found in the ONGC, Shilchar case, this is a violation of Article 14 of the Constitution by the HPCL.
41. In the present case, the workmen have been working from 1989 till 1998 without any break and they were not under the control of the so-called contractors. The HPCL was directly supervising their work. It also held that the work was perennial since for any establishment, the up-keep of the establishment is important even though under law, there was no requirement of holding any licence for a contractor, who supplies labour. In the present case, the issue is slightly different wherein the workmen were directly engaged by the HPCL, who supervised the work and controlled all their activities.
42. Though the HPCL claimed that as the principal employer they have paid the EPF and ESIC contributions in each of the agreements with the so-called contractors, they have specified that the contractors must be responsible for the EPF and ESIC contributions. This was not adhered to. Further, it was the HPCL which forwarded all the applications for part-withdrawal of PF to the authorities and the so-called contractors never initiated any such move.
43. The contract made between the HPCL and W.W.3, M.W.2 and M.W.3 is clearly sham and nominal. The agreements produced before the CGIT show the nature of duties to be performed by the men supplied by the so-called contractor. There are many instances in which the same workmen were sent out for work with outside agencies such as Sales Tax Department, Government Secretariat and Book shops for getting stationery and books as if they are the office boys of the HPCL and the scope of such work was never specified in the agreement. For doing such work, in some of the authorisation letters, the workmen were described as the staff of HPCL.
44. The contract agreements produced as exhibits show that it was for labour supply agreement. But in real term, the so-called contractor himself was doing the work. In one case, there was no other worker other than the alleged contractor himself was doing the work. This was spoken to by the alleged contractors who had deposed as W.W.2 and W.W.3.
45. It was also from Exs. W.93 and W.94 that the payment of wages was directly paid to the workmen by the HPCL and signatures were obtained from them in the records of the HPCL. Though the said contract did not provide for any Bonus, such payments were made to workmen as found in the documents produced by the workmen. Except contending that the workmen were contract labourers and relying upon the so-called agreements, the HPCL did not acquit itself to show that they were proper agreements. On the contrary, the workmen's evidence both oral and documentary clearly shows that the contracts were mere sham and nominal. It was a finding of fact recorded by the CGIT and such findings cannot be assailed in a writ petition under Article 226 of the Constituion.
46. In this context, it is necessary to refer to the decision of the Supreme Court in Workmen of English
Electric Company of India Ltd. v. Presiding Officer and another [1990 (2) SCC 18]. The relevant passage found in paragraph 8 of the judgment may be usefully extracted below:-
Para 8: ".... While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the material on the record and decide as to which part of the claim was tenable. The finding of the Tribunal that 131 workmen had put in more than 240 days of work was arrived at on the basis of some evidence; it may be that better particulars and clear evidence should have been placed before the Tribunal. Quantum of evidence or appreciation thereof for recording findings of fact would not come within the purview of High Court s extraordinary jurisdiction under Article 226 of the Constitution...."
47. The HPCL's contention was that the pleadings of the workmen were not consistent and before this Court they have stated that they were contract workmen. But in the light of the changing decisions of the Supreme Court, such pleadings will become inevitable. In the writ petition, they heavily banked on the Air India Statutory Corporation Case (cited supra). But the learned Judge, while directing the matter to be tried by the Tribunal, removed all misconceptions and directed the matter to be dealt with afresh. The learned Judge even recorded a finding that the order of the Deputy Chief Labour Commissioner under the CLRA Act does not help either side. Even the Supreme Court in SAIL's case (cited supra) has indicated the parameters of decision making by the industrial adjudicators and hence, the matter will have to be dealt with afresh in the light of the said judgment.
48. In the present case, the role of HPCL in hounding out a Union General Secretary with a charge-sheet and a resultant punishment and a transfer to far off place for pursuing the case of the workmen and coupled with the fact that the Union remained ex-parte before the CGIT will only show that there
was bound to be minor contradictions in the stand of the workmen. Their plight in this regard is understandable.
49. The HPCL never denied in their pleadings regarding the workmen in Mumbai and Vizag, who were similarly placed, were regularised in view of the Air India Statutory Corporation case (cited supra). In Industrial Law, the "region cum industry" principle is applicable and the HPCL, being an all India Organisation, cannot take shifting stand depending upon the region in which it operates. Considering that most of these workmen had continuously worked before the interim order for over ten years in a work which is perennial in nature, their demand for regularisation can never be termed to be illegal or unjust.
50. In the light of the above materials, the finding of fact rendered by the CGIT regarding the contract between the workmen and the HPCL being sham and nominal, the impugned Award is fully in consonance with the legal precedents referred to above. Further, the Tribunal, conscious of its power, had limited the backwages at 50% to be paid to the workmen.
51. But while ordering the regularisation only from the date of retrenchment, the CGIT did not keep in mind the relevant legal provisions, viz., the effect of the Tamil Nadu Act 46 of 1981, which guarantees permanency if a workman completes 480 days' of service within a period of 24 calendar months. Pending the adjudication of the regularisation issue, the HPCL could not have dispensed with the service of the workmen without getting prior approval form the CGIT under Section 33(2)(b) of the I.D. Act. Such violation by the HPCL will clearly make their non-employment void ab initio and the position of law in this regard has been well-settled by a Constitution Bench judgment of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others [2002 (2) SCC 244]. In that case, the Supreme Court has held in paragraph 14 that the workman need not challenge such a dispensation from service with any independent proceedings.
52. Therefore, the payment of salary for four months from 25.3.2004, viz., the date of receipt of the order of the Division Bench, cannot help the case of the HPCL. The Division Bench itself had stated that in the event of the workmen succeeding, the HPCL should abide by the Award. As held in the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. case (cited supra),any termination pending the adjudication without approval under Section 33(2)(b) of the I.D. Act will become void ab initio. Therefore, the CGIT was wrong in directing regularisation only from the date of the retrenchment, viz., July 2004, and it should be in accordance with the mandate of Tamil Nadu Act 46 of 1981, which is applicable to HPCL.
53. In the light of the above, the writ petition W.P. No. 37547 of 2005 filed by the HPCL will stand dismissed with costs. The cost is quantified at Rs.1000/- to be paid to each of the workmen (respondents 3 to 10) towards the cost of litigation, which has been pending since 1998 for a period of ten years.
54. W.P. No. 12772 of 2006 filed by the workmen will stand allowed. The Award of the CGIT dated 14.3.2005 made in I.D. No. 311 of 2004 will stand modified to the extent indicated above. The workmen are entitled to get their regularisation from the date on which each of them had completed 480 days' of service within a period of 24 calendar months together with 50% of the backwages ordered by the CGIT.
gri
To
The Presiding Officer
Central Government Labour Court cum Industrial Tribunal
Shastri Bhavan,
Chennai
Saturday, May 14, 2011
FOXCON MANAGEMENT DIRECTED TO HOLD SECRET BALLOT ELECTION TO RECOGNISE TRADE UNION FOR BARGAINING
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2011
CORAM:
THE HONOURABLE MR.JUSTICE VINOD K. SHARMA
W.P.No.24353/2010
Podhu Thozhilalar Sangam (CITU),
Regn. No.504/CPT,
No.296, Gandhi Road,
Kanchipuram 631 501. ... Petitioner
versus
1.State of Tamil Nadu,
rep. by its Principal Secretary to Government,
Ministry of Labour and Employment,
Secretariat, Fort St.George,
Chennai 9.
2.Assistant Labour Commissioner,
Sriperumbudur,
Kanchipuram District.
3.The Management of Foxconn (India) Pvt.Ltd.,
rep. by its Managing Director,
Nokia Telecom SEZ,
SIPCOT Industrial Part Phase III,
A-1 Chennai Bangalore Highway (NH-4)
Sriperumbudur 602 105.
Kanchipuram District.
4.Foxconn (India) Thozilalar
Munnetra Sangam,
No.49-A, East Raja Veethi,
Kanchipuram. ... Respondents
Writ Petition filed under Art.226 of the Constitution of India praying for a Writ of Mandamus directing respondents 1 and 2 to hold election by secret ballot from among workers in the third respondent management to decide which union commands the majority and to recognize that union as recognized union which secures majority votes and negotiate and settle workers grievances only with them.
For petitioner : Mr.N.G.R. Prasad,
for M/s.Row and Reddy
For Respondents 1 and 2 : Mr.P.Muthukumar, Govt. Advocate,
for respondents 1 and 2.
Mrs.Nalini Chidambaram, Sr. Counsel,
for Mr.N.K.K.Arun Natarajan,
for 3rd respondent
No appearance for 4th respondent
O R D E R
The writ petitioner, Podhu Thozhilalar Sangam, a Workers' Union, has approached this court for issuance of a writ, in the nature of mandamus, directing respondents 1 and 2 to hold elections by secret ballot from among the workers of Foxconn (P) Ltd., so as to enable the third respondent Management to recognize the union enjoying majority, for negotiations of industrial disputes.
2.The case pleaded in the affidavit filed by the petitioner is that the Management has employed 1850 permanent workers. In addition, there are 500 workers on probation, 1500 trainees and 4000 contract workers.
3.The petitioner Union claimed that its membership is 1200 and therefore, it represents the majority. The petitioner union had placed Charter of Demands for wages, Dearness Allowance etc. on 24.08.2010. The Management gave their consent to the Assistant Labour Commissioner, Sriperumpudur, showing their willingness to hold negotiations with the majority union after holding election by secret ballot. The letter addressed to Assistant Labour Commissioner by the Management reads as under:-
"August 24, 2010
To
Assistant Labour Commissioner,
Sriperumbadur,
Kanchipuram District.
Respected Sir,
Sub : Requesting your good office to facilitate to know the Majority
Union for negotiating the "Charter of Demand"
We have received a letter from Labour Progressive Front [LPF] which has been registered under Trade Union Act 1926. Based on their submission of their office bearers we have initiated our initial talks with LPF Union. Moreover, they too have given their "Charter of Demand" and subsequently we had initiated our first round of talks with the LPF on 18th August, 10.
While we are negotiating with the present Union (LPF) and last Sunday (22.08.2010) CITU had hoisted the flag stating that they had registered the Union. They have prepared their "Charter of Demand" and they are willing to submit to us.
In this context, we would like to inform you that the Management is willing to negotiate whoever has got more majority and we would like to talk to them. Kindly facilitate us to show their majority through proper election mode where by the Management can talk to appropriate forum which has got more majorities.
Your kind cooperation is solicited.
For Foxconn India Pvt. Ltd.
Sakayaraju
Manager HR
CC to
1.The Principal Secretary
Ministry of Labour and Employment, Government of Tamil Nadu.
2.Joint Commissioner of Labour, Chennai.
3.Deputy Commissioner of Labour, Chennai."
4.The case of the petitioner is that in spite of the willingness expressed by the Management to hold elections, by secret ballot respondents 1 and 2 have not taken any steps to hold election to find out as to which union represents the majority for the purpose of negotiations. The petitioner has also stated in the affidavit that the management was taking steps to arrive at settlement under Section 18(1) of the Industrial Disputes Act with the fourth respondent union, which is not acceptable to the petitioner.
5.In support of his contention that secret ballot system should be followed to determine the majority union for negotiating the settlement under the Industrial Disputes Act, the learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India [AIR 1995 SC 1344], wherein the Hon'ble Supreme Court was pleased to observe as under :-
"Collective bargaining is the principal raison djtre of the trade unions. However, to see that the trade union, which takes up the matter concerning service conditions of the workmen truly represents the workmen employed in the establishment, the trade union is first required to get itself registered under the provisions of Trade Unions Act, 1926. This gives a stamp of due formation of the trade union and assures the mind of the employer that the trade union is an authenticated body; the names and occupation of whose office-bearers also become known. But when in an establishment, be it an industry or an undertaking, there are more than one registered trade unions, the question as to with whom the employer should negotiate or enter into bargaining assumes importance, because if the trade union claiming this right be one which has as its members minority of the workmen/employees, the settlement, even if any arrived between the employers and such a union, may not be acceptable to the majority and may not result in industrial peace. In such a situation with whom the employer should bargain, or to put it differently who should be the sole bargaining agent, has been a matter of discussion and some dispute. The check off system which once prevailed in this domain has lost its appeal; and so, efforts are on to find out which other system can foot the bill. The method of secret ballot is being gradually accepted. All concerned would, however, like to see that this method is so adapted and adjusted that it reflects the correct position as regards membership of the different trade unions operating in one and the same industry, establishment or undertaking.
6.It is represented by the learned Senior counsel appearing for the Management that a settlement stands arrived at between the Management and the fourth respondent u/s 18(1) of the I.D. Act. The learned Senior counsel, therefore, contended that the writ petition no longer survives as no relief can be granted at this stage.
7.The learned counsel for the petitioner in order to controvert the contention of the learned Senior counsel for the Management that the writ petition does not survive, as settlement has already been arrived at between the Management and Union, placed reliance on the judgment of this Court in Writ Petition No.33200/2002 [Ranipet Greaves Employees Union, represented by its General Secretary and Greaves Labour Union, represented by its Secretary Vs. The Commissioner of Labour, Labour Officer-I, Greaves Employees Development union, represented by the General Secretary and Greaves Mazdoor Sangam, represented by its General Secretary] decided on 05.09.2003, wherein this Court was pleased to observe as under :-
"5. It is not in dispute that a settlement was arrived at between the management and the workers' union on 9-8-90 under Section 12(3) of the Industrial Disputes Act regarding union election facilitating election for secret ballot to elect workers representatives. It is also not disputed that as per the said 12 (3) settlement, election would be held once in 3 years under the supervision of the Labour Officer. It is also not disputed that this representative body alone would get recognition from the management and this body alone has right to negotiate with the management. It is brought to my notice that after the factory at Ranipet was taken over by the Greaves Limited from the Enfield India Limited with all its rights and liabilities, elections were held in the year 1994, 1997 and 1999 to elect the workers' representatives in accordance with 12(3) settlement dated 9-8-90. It is the definite case of the petitioner Union that the term of office for the workers representatives elected in the year 1999 came to an end in the year 2001 and thereafter no election has been held. It is the claim of the respondents 2 and 3 that there are four different unions in the Greaves Limited and in all occasions whenever there is a dispute or settlement, the management used to call all the 4 unions. During the course of hearing, learned counsel for the respondents has brought to my notice a letter dated 20-8-2003 issued by the Greaves Limited informing that it is the policy of the management involving all the 4 unions in the negotiation process. By pointing out the said letter, learned counsel for respondents 3 and 4 would contend that the Labour Officer, Vellore I/second respondent herein is fully justified in rejecting the request of the petitioner for conducting election for Unions. First of all, the letter of the management dated 20-8-2003 was issued recently, i.e., in any event, subsequent to the filing of the writ petition. In view of the fact that the management has not been impleaded as one of the respondents in the above writ petition, for the reasons best known to them, the management has not taken care to get themselves impleaded to put-forth their stand before this Court. Further, this letter was not addressed to the Labour Officer or to any one of the unions. In such a circumstance, I am not inclined to rely on the said letter brought before this Court at the time of argument. On the other hand, Mr. N.G.R. Prasad, learned counsel for the petitioner, has brought to my notice the relevant clauses in the 12(3) Settlement dated 09-08-90 which show election has to be held once in two years under the supervision of the Labour Officer. It is also clear that only the representative body would get recognition from the management and the said body alone has the right to negotiate with the management. It is also brought to my notice that the term of office for the workers representatives elected in the year 1999 came to an end in the year 2001 and thereafter no election has been held. In this regard, it is relevant to refer the request made by the management Greaves Limited in their letter dated 29-12-94 to the Labour Officer, Vellore I. In the letter, the management after referring to the existence of 3 unions namely Ranipet Greaves Employees Union, Greaves Workers Union and Greaves Mazdoor Sangam and after highlighting that because of various unions, they are not in a position to run the industry conducively, peacefully and without any disturbance, requested the Labour Officer to conduct election among the workers and select a representative body for the benefit of the workers as well as smooth functioning of the factory at Ranipet. The said letter finds a place at page 5 of the typed-set of papers filed by the petitioner. In the light of the stand of the management, in view of various clauses in the 12(3) settlement dated 9-8-90 regarding union election and of the fact that elections were held in the year 1994, 1997 and 1999 and no election has been held in 2001, I am of the view that the Labour Officer committed an error in rejecting the request of the petitioner instead of conducting election as per the terms and conditions of 12 (3) settlement dated 9-8-1990.
6. It has been held in a series of decisions by the Apex Court that Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute, that Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found and that technicalities should not come in the way of granting that relief under Article 226 of the Constitution of India. Further, to have industrial peace and harmony, the trade union has to exist by following democratic means and norms. One of the methods is to have Office Bearers duly elected under the bye-laws. In this case it is not disputed that 12 (3) settlement dated 9-8-90 enables election to the union once in two years under the supervision of the Labour Officer and, in fact, elections were held in the previous years namely 1994, 1997 and 1999 and no election has been held after 2001. I am unable to understand the attitude of the 2nd respondent in rejecting the request of the petitioner which is totally different. In similar circumstances, K.S.Bakthavatsalam J., in Writ Petition No. 6415 of 1991 dated 2-7-1992, directed the Labour Officer to conduct election for Office Bearers and Executive Committee Members of the workers union. Similar directions were also issued by K. Govindarajan, J., in Writ Petition No. 8721/1998 dated 04-02-1999 and K. Raviraja Pandian, J., in Writ Petition Nos. 2551 of 1999 etc., batch dated 12-02-2001. It is also relevant to refer a decision of the apex Court in F.C.I. Staff Union v. Food Corporation of India, reported in AIR 1995 SC 1344 wherein Their Lordships have held that in an industry or a concern more than one unions exist, it is but proper to conduct secret ballot and elect representatives to represent them before the Labour Officer or before the management as well as officers prescribed under the Act. In the said decision, the Supreme Court after prescribing norms and procedures, directed the Food Corporation of India to hold elections in accordance with the procedures mentioned by them.
8.The validity of the settlement entered into between the Management and the fourth respondent is not under challenge in the present writ petition. Therefore, this court is not expressing any opinion on legality of the settlement.
9.The learned counsel for the petitioner prayed that the respondents be directed to conduct election by secret ballot to ascertain the majority union.
10.On a consideration, I find force in the contention raised by the learned counsel for the petitioner. The Hon'ble Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India, AIR 1995 SC 1344, has observed that to have industrial peace and harmony, trade union has to exist by following democratic means and norms. In the present case, even the Management had given its consent for holding election by secret ballot, and it is the second respondent who has chosen not to proceed further with the matter, which resulted in the management entering into a settlement with the fourth respondent. The second respondent, thus, failed to perform the duty entrusted to him, and thus defeated the rightful claim of the petitioner.
11.The learned counsel for the petitioner is also right in contending that mere settlement cannot be a ground to deny holding of election by secret ballot to determine the majority union for the purposes of negotiation, as held by this Court in Writ Petition No.33200/2002 [Ranipet Greaves Employees Union, represented by its General Secretary and Greaves Labour Union, represented by its Secretary Vs. The Commissioner of Labour, Labour Officer-I, Greaves Employees Development union, represented by the General Secretary and Greaves Mazdoor Sangam, represented by its General Secretary].
12.The contention of the learned Senior counsel for the Management that the writ petition suffers from the vice of non-joinder of necessary parties, as Development Commissioner of the Special Economic Zone, who is the competent conciliation Officer, has not been made party, cannot be sustained as the Development Commissioner cannot be said to be necessary party because at best, he could be a proper party, and non joining of the Development Officer cannot be fatal to the case. The prayer made by the petitioner for holding of election by secret ballot is only to ascertain the majority union. It is also to be noticed that the Management has no objection for conducting election by secret ballot. For the reasons mentioned, this writ petition is allowed.
13.The second respondent is directed to hold election by secret ballot to determine the majority union for the purpose of maintaining industrial peace and help the management in selecting the union with whom negotiations can be held.
14.It is made clear, this shall not be taken to be an expression of opinion on the settlement already arrived at by the Management and the fourth respondent. The legality of settlement can be tested only by the aggrieved party before the appropriate forum, in accordance with law.
15.While holding election by secret ballot, the second respondent is directed to follow the principles of fair and free election, as laid down by the Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India, AIR 1995 SC 1344, which is as under :-
"4.We have perused the aforesaid documents. We direct that the following norms and procedure shall be followed for assessing the representative character of trade unions by the secret ballot system.
(i)As agreed to by the parties the relative strength of all the eligible unions by way of secret ballot be determined under the overall supervision of the Chief Labour Commissioner (Central) (CLC).
(ii)The CLC will notify the Returning Officer who shall conduct the election with the assistance of the FCI. The Returning Officer shall be an officer of the Government of India, Ministry of Labour.
(iii)The CLC shall fix the month of election while the actual date/dates of election shall be fixed by the Returning Officer.
(iv)The Returning Officer shall require the FCI to furnish sufficient number of copies of the lists of all the employees/ workers (Categories III and IV) governed by the FCI (Staff) Regulations, 1971 borne on the rolls of the FCI as on the date indicated by the CLC. The list shall be prepared in the pro forma prescribed by the CLC. The said list shall constitute the voters list.
(v)The FCI shall display the voters list on the notice boards and other conspicuous places and shall also supply copies thereof to each of the unions for raising objections, if any. The unions will file the objections to the Returning Officer within the stipulated period and the decision of the Returning Officer shall be final.
(vi)The FCI shall make necessary arrangement to:
(a)give wide publicity to the date/dates of election by informing the unions and by affixing notices on the notice boards and also at other conspicuous places for the information of all the workers;
(b)print requisite number of ballot papers in the pro forma prescribed by the CLC incorporating therein the names of all the participating unions in an alphabetical order after ascertaining different symbols of respective unions;
(c)the ballot papers would be prepared in the pro forma prescribed by the CLC in Hindi/English and the regional language concerned;
(d)set up requisite number of polling stations and booths near the premises where the workers normally work; and
(e)provide ballot boxes with requisite stationery, boards, sealing wax etc.
(vii)The Returning Officer shall nominate Presiding Officer for each of the polling station/booth with requisite number of polling assistants to conduct the election in an impartial manner. The Presiding Officers and the polling assistants may be selected by the Returning Officer from amongst the officers of the FCI.
(viii)The election schedule indicating the dates for filing of nominations, scrutiny of nomination papers, withdrawal of nominations, polling, counting of votes and the declaration of results shall be prepared and notified by the Returning Officer in consultation with the FCI. The election schedule shall be notified by the Returning Officer well in advance and at least one months time shall be allowed to the contesting unions for canvassing before the date of filing the nominations.
(ix)To be eligible for participating in the election, the unions must have valid registration under the Trade Unions Act, 1926 for one year with an existing valid registration on the first day of filing of nomination.
(x)The Presiding Officer shall allow only one representative to be present at each polling station/booth as observer.
(xi)At the time of polling, the polling assistant will first score out the name of the employee/workman who comes for voting, from the master copy of the voters list and advise him thereafter to procure the secret ballot paper from the Presiding Officer.
(xii)The Presiding Officer will hand over the ballot paper to the workman/employee concerned after affixing his signatures thereon. The signatures of the workman/employee casting the vote shall also be obtained on the counterfoil of the ballot paper. He will ensure that the ballot paper is put inside the box in his presence after the voter is allowed to mark on the symbol of the candidate with the inked rubber stamp in camera. No employee/workman shall be allowed to cast his vote unless he produces his valid identity card before the Presiding Officer concerned. In the event of non-production of identity card due to any reason, the voter may bring in an authorisation letter from his controlling officer certifying that the voter is the bona fide employee of the FCI.
(xiii)After the close of the polling, the Presiding Officer shall furnish detailed ballot paper account in the pro forma prescribed by the CLC indicating total ballot papers received, ballot papers used, unused ballot papers available etc. to the Returning Officer.
(xiv)After the close of the polling, the ballot boxes will be opened and counted by the Returning Officer or his representative in the presence of the representatives of each of the unions. All votes which are marked more than once, spoiled, cancelled or damaged etc. will not be taken into account as valid votes but a separate account will be kept thereof.
(xv)The contesting unions through their representatives present at the counting place may be allowed to file applications for re-counting of votes to the Returning Officer. The request would be considered by the Returning Officer and in a given case if he is satisfied that there is reason to do so he may permit re-counting. However, no application for re-counting shall be entertained after the results of the votes are declared.
(xvi)The result of voting shall be compiled on the basis of valid votes polled in favour of each union in the pro forma prescribed by the CLC and signatures obtained thereon from the representatives of all the unions concerned as a proof of counting having been done in their presence.
(xvii)After declaring the results on the basis of the votes polled in favour of each union by the Returning Officer, he will send a report of his findings to the CLC.
(xviii)The union/unions obtaining the highest number of votes in the process of election shall be given recognition by the FCI for a period of five years from the date of the conferment of the recognition.
(xix)It would be open to the contesting unions to object to the result of the election or any illegality or material irregularity which might have been committed during the election. Before the Returning Officer such objection can only be raised after the election is over. The objection shall be heard by the CLC and disposed of within 30 days of the filing of the same. The decision of the CLC shall be final subject to challenge before a competent court, if permitted under law."
16.The second respondent shall conduct election taking into consideration the above principles laid down by the Supreme Court, with necessary modifications, wherever necessary. The process of elections by secret ballot shall be commenced within six weeks from the date of receipt of a certified copy of this order.
17. There is no order as to costs in the writ petition. M.P.No.1/2010 is closed.
tar
To
1.Principal Secretary to Government,
Ministry of Labour and Employment,
Secretariat, Fort St.George, Chennai 9.
2.Assistant Labour Commissioner,
Sriperumbudur,
Kanchipuram District
DATED: 04.01.2011
CORAM:
THE HONOURABLE MR.JUSTICE VINOD K. SHARMA
W.P.No.24353/2010
Podhu Thozhilalar Sangam (CITU),
Regn. No.504/CPT,
No.296, Gandhi Road,
Kanchipuram 631 501. ... Petitioner
versus
1.State of Tamil Nadu,
rep. by its Principal Secretary to Government,
Ministry of Labour and Employment,
Secretariat, Fort St.George,
Chennai 9.
2.Assistant Labour Commissioner,
Sriperumbudur,
Kanchipuram District.
3.The Management of Foxconn (India) Pvt.Ltd.,
rep. by its Managing Director,
Nokia Telecom SEZ,
SIPCOT Industrial Part Phase III,
A-1 Chennai Bangalore Highway (NH-4)
Sriperumbudur 602 105.
Kanchipuram District.
4.Foxconn (India) Thozilalar
Munnetra Sangam,
No.49-A, East Raja Veethi,
Kanchipuram. ... Respondents
Writ Petition filed under Art.226 of the Constitution of India praying for a Writ of Mandamus directing respondents 1 and 2 to hold election by secret ballot from among workers in the third respondent management to decide which union commands the majority and to recognize that union as recognized union which secures majority votes and negotiate and settle workers grievances only with them.
For petitioner : Mr.N.G.R. Prasad,
for M/s.Row and Reddy
For Respondents 1 and 2 : Mr.P.Muthukumar, Govt. Advocate,
for respondents 1 and 2.
Mrs.Nalini Chidambaram, Sr. Counsel,
for Mr.N.K.K.Arun Natarajan,
for 3rd respondent
No appearance for 4th respondent
O R D E R
The writ petitioner, Podhu Thozhilalar Sangam, a Workers' Union, has approached this court for issuance of a writ, in the nature of mandamus, directing respondents 1 and 2 to hold elections by secret ballot from among the workers of Foxconn (P) Ltd., so as to enable the third respondent Management to recognize the union enjoying majority, for negotiations of industrial disputes.
2.The case pleaded in the affidavit filed by the petitioner is that the Management has employed 1850 permanent workers. In addition, there are 500 workers on probation, 1500 trainees and 4000 contract workers.
3.The petitioner Union claimed that its membership is 1200 and therefore, it represents the majority. The petitioner union had placed Charter of Demands for wages, Dearness Allowance etc. on 24.08.2010. The Management gave their consent to the Assistant Labour Commissioner, Sriperumpudur, showing their willingness to hold negotiations with the majority union after holding election by secret ballot. The letter addressed to Assistant Labour Commissioner by the Management reads as under:-
"August 24, 2010
To
Assistant Labour Commissioner,
Sriperumbadur,
Kanchipuram District.
Respected Sir,
Sub : Requesting your good office to facilitate to know the Majority
Union for negotiating the "Charter of Demand"
We have received a letter from Labour Progressive Front [LPF] which has been registered under Trade Union Act 1926. Based on their submission of their office bearers we have initiated our initial talks with LPF Union. Moreover, they too have given their "Charter of Demand" and subsequently we had initiated our first round of talks with the LPF on 18th August, 10.
While we are negotiating with the present Union (LPF) and last Sunday (22.08.2010) CITU had hoisted the flag stating that they had registered the Union. They have prepared their "Charter of Demand" and they are willing to submit to us.
In this context, we would like to inform you that the Management is willing to negotiate whoever has got more majority and we would like to talk to them. Kindly facilitate us to show their majority through proper election mode where by the Management can talk to appropriate forum which has got more majorities.
Your kind cooperation is solicited.
For Foxconn India Pvt. Ltd.
Sakayaraju
Manager HR
CC to
1.The Principal Secretary
Ministry of Labour and Employment, Government of Tamil Nadu.
2.Joint Commissioner of Labour, Chennai.
3.Deputy Commissioner of Labour, Chennai."
4.The case of the petitioner is that in spite of the willingness expressed by the Management to hold elections, by secret ballot respondents 1 and 2 have not taken any steps to hold election to find out as to which union represents the majority for the purpose of negotiations. The petitioner has also stated in the affidavit that the management was taking steps to arrive at settlement under Section 18(1) of the Industrial Disputes Act with the fourth respondent union, which is not acceptable to the petitioner.
5.In support of his contention that secret ballot system should be followed to determine the majority union for negotiating the settlement under the Industrial Disputes Act, the learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India [AIR 1995 SC 1344], wherein the Hon'ble Supreme Court was pleased to observe as under :-
"Collective bargaining is the principal raison djtre of the trade unions. However, to see that the trade union, which takes up the matter concerning service conditions of the workmen truly represents the workmen employed in the establishment, the trade union is first required to get itself registered under the provisions of Trade Unions Act, 1926. This gives a stamp of due formation of the trade union and assures the mind of the employer that the trade union is an authenticated body; the names and occupation of whose office-bearers also become known. But when in an establishment, be it an industry or an undertaking, there are more than one registered trade unions, the question as to with whom the employer should negotiate or enter into bargaining assumes importance, because if the trade union claiming this right be one which has as its members minority of the workmen/employees, the settlement, even if any arrived between the employers and such a union, may not be acceptable to the majority and may not result in industrial peace. In such a situation with whom the employer should bargain, or to put it differently who should be the sole bargaining agent, has been a matter of discussion and some dispute. The check off system which once prevailed in this domain has lost its appeal; and so, efforts are on to find out which other system can foot the bill. The method of secret ballot is being gradually accepted. All concerned would, however, like to see that this method is so adapted and adjusted that it reflects the correct position as regards membership of the different trade unions operating in one and the same industry, establishment or undertaking.
6.It is represented by the learned Senior counsel appearing for the Management that a settlement stands arrived at between the Management and the fourth respondent u/s 18(1) of the I.D. Act. The learned Senior counsel, therefore, contended that the writ petition no longer survives as no relief can be granted at this stage.
7.The learned counsel for the petitioner in order to controvert the contention of the learned Senior counsel for the Management that the writ petition does not survive, as settlement has already been arrived at between the Management and Union, placed reliance on the judgment of this Court in Writ Petition No.33200/2002 [Ranipet Greaves Employees Union, represented by its General Secretary and Greaves Labour Union, represented by its Secretary Vs. The Commissioner of Labour, Labour Officer-I, Greaves Employees Development union, represented by the General Secretary and Greaves Mazdoor Sangam, represented by its General Secretary] decided on 05.09.2003, wherein this Court was pleased to observe as under :-
"5. It is not in dispute that a settlement was arrived at between the management and the workers' union on 9-8-90 under Section 12(3) of the Industrial Disputes Act regarding union election facilitating election for secret ballot to elect workers representatives. It is also not disputed that as per the said 12 (3) settlement, election would be held once in 3 years under the supervision of the Labour Officer. It is also not disputed that this representative body alone would get recognition from the management and this body alone has right to negotiate with the management. It is brought to my notice that after the factory at Ranipet was taken over by the Greaves Limited from the Enfield India Limited with all its rights and liabilities, elections were held in the year 1994, 1997 and 1999 to elect the workers' representatives in accordance with 12(3) settlement dated 9-8-90. It is the definite case of the petitioner Union that the term of office for the workers representatives elected in the year 1999 came to an end in the year 2001 and thereafter no election has been held. It is the claim of the respondents 2 and 3 that there are four different unions in the Greaves Limited and in all occasions whenever there is a dispute or settlement, the management used to call all the 4 unions. During the course of hearing, learned counsel for the respondents has brought to my notice a letter dated 20-8-2003 issued by the Greaves Limited informing that it is the policy of the management involving all the 4 unions in the negotiation process. By pointing out the said letter, learned counsel for respondents 3 and 4 would contend that the Labour Officer, Vellore I/second respondent herein is fully justified in rejecting the request of the petitioner for conducting election for Unions. First of all, the letter of the management dated 20-8-2003 was issued recently, i.e., in any event, subsequent to the filing of the writ petition. In view of the fact that the management has not been impleaded as one of the respondents in the above writ petition, for the reasons best known to them, the management has not taken care to get themselves impleaded to put-forth their stand before this Court. Further, this letter was not addressed to the Labour Officer or to any one of the unions. In such a circumstance, I am not inclined to rely on the said letter brought before this Court at the time of argument. On the other hand, Mr. N.G.R. Prasad, learned counsel for the petitioner, has brought to my notice the relevant clauses in the 12(3) Settlement dated 09-08-90 which show election has to be held once in two years under the supervision of the Labour Officer. It is also clear that only the representative body would get recognition from the management and the said body alone has the right to negotiate with the management. It is also brought to my notice that the term of office for the workers representatives elected in the year 1999 came to an end in the year 2001 and thereafter no election has been held. In this regard, it is relevant to refer the request made by the management Greaves Limited in their letter dated 29-12-94 to the Labour Officer, Vellore I. In the letter, the management after referring to the existence of 3 unions namely Ranipet Greaves Employees Union, Greaves Workers Union and Greaves Mazdoor Sangam and after highlighting that because of various unions, they are not in a position to run the industry conducively, peacefully and without any disturbance, requested the Labour Officer to conduct election among the workers and select a representative body for the benefit of the workers as well as smooth functioning of the factory at Ranipet. The said letter finds a place at page 5 of the typed-set of papers filed by the petitioner. In the light of the stand of the management, in view of various clauses in the 12(3) settlement dated 9-8-90 regarding union election and of the fact that elections were held in the year 1994, 1997 and 1999 and no election has been held in 2001, I am of the view that the Labour Officer committed an error in rejecting the request of the petitioner instead of conducting election as per the terms and conditions of 12 (3) settlement dated 9-8-1990.
6. It has been held in a series of decisions by the Apex Court that Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute, that Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found and that technicalities should not come in the way of granting that relief under Article 226 of the Constitution of India. Further, to have industrial peace and harmony, the trade union has to exist by following democratic means and norms. One of the methods is to have Office Bearers duly elected under the bye-laws. In this case it is not disputed that 12 (3) settlement dated 9-8-90 enables election to the union once in two years under the supervision of the Labour Officer and, in fact, elections were held in the previous years namely 1994, 1997 and 1999 and no election has been held after 2001. I am unable to understand the attitude of the 2nd respondent in rejecting the request of the petitioner which is totally different. In similar circumstances, K.S.Bakthavatsalam J., in Writ Petition No. 6415 of 1991 dated 2-7-1992, directed the Labour Officer to conduct election for Office Bearers and Executive Committee Members of the workers union. Similar directions were also issued by K. Govindarajan, J., in Writ Petition No. 8721/1998 dated 04-02-1999 and K. Raviraja Pandian, J., in Writ Petition Nos. 2551 of 1999 etc., batch dated 12-02-2001. It is also relevant to refer a decision of the apex Court in F.C.I. Staff Union v. Food Corporation of India, reported in AIR 1995 SC 1344 wherein Their Lordships have held that in an industry or a concern more than one unions exist, it is but proper to conduct secret ballot and elect representatives to represent them before the Labour Officer or before the management as well as officers prescribed under the Act. In the said decision, the Supreme Court after prescribing norms and procedures, directed the Food Corporation of India to hold elections in accordance with the procedures mentioned by them.
8.The validity of the settlement entered into between the Management and the fourth respondent is not under challenge in the present writ petition. Therefore, this court is not expressing any opinion on legality of the settlement.
9.The learned counsel for the petitioner prayed that the respondents be directed to conduct election by secret ballot to ascertain the majority union.
10.On a consideration, I find force in the contention raised by the learned counsel for the petitioner. The Hon'ble Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India, AIR 1995 SC 1344, has observed that to have industrial peace and harmony, trade union has to exist by following democratic means and norms. In the present case, even the Management had given its consent for holding election by secret ballot, and it is the second respondent who has chosen not to proceed further with the matter, which resulted in the management entering into a settlement with the fourth respondent. The second respondent, thus, failed to perform the duty entrusted to him, and thus defeated the rightful claim of the petitioner.
11.The learned counsel for the petitioner is also right in contending that mere settlement cannot be a ground to deny holding of election by secret ballot to determine the majority union for the purposes of negotiation, as held by this Court in Writ Petition No.33200/2002 [Ranipet Greaves Employees Union, represented by its General Secretary and Greaves Labour Union, represented by its Secretary Vs. The Commissioner of Labour, Labour Officer-I, Greaves Employees Development union, represented by the General Secretary and Greaves Mazdoor Sangam, represented by its General Secretary].
12.The contention of the learned Senior counsel for the Management that the writ petition suffers from the vice of non-joinder of necessary parties, as Development Commissioner of the Special Economic Zone, who is the competent conciliation Officer, has not been made party, cannot be sustained as the Development Commissioner cannot be said to be necessary party because at best, he could be a proper party, and non joining of the Development Officer cannot be fatal to the case. The prayer made by the petitioner for holding of election by secret ballot is only to ascertain the majority union. It is also to be noticed that the Management has no objection for conducting election by secret ballot. For the reasons mentioned, this writ petition is allowed.
13.The second respondent is directed to hold election by secret ballot to determine the majority union for the purpose of maintaining industrial peace and help the management in selecting the union with whom negotiations can be held.
14.It is made clear, this shall not be taken to be an expression of opinion on the settlement already arrived at by the Management and the fourth respondent. The legality of settlement can be tested only by the aggrieved party before the appropriate forum, in accordance with law.
15.While holding election by secret ballot, the second respondent is directed to follow the principles of fair and free election, as laid down by the Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India, AIR 1995 SC 1344, which is as under :-
"4.We have perused the aforesaid documents. We direct that the following norms and procedure shall be followed for assessing the representative character of trade unions by the secret ballot system.
(i)As agreed to by the parties the relative strength of all the eligible unions by way of secret ballot be determined under the overall supervision of the Chief Labour Commissioner (Central) (CLC).
(ii)The CLC will notify the Returning Officer who shall conduct the election with the assistance of the FCI. The Returning Officer shall be an officer of the Government of India, Ministry of Labour.
(iii)The CLC shall fix the month of election while the actual date/dates of election shall be fixed by the Returning Officer.
(iv)The Returning Officer shall require the FCI to furnish sufficient number of copies of the lists of all the employees/ workers (Categories III and IV) governed by the FCI (Staff) Regulations, 1971 borne on the rolls of the FCI as on the date indicated by the CLC. The list shall be prepared in the pro forma prescribed by the CLC. The said list shall constitute the voters list.
(v)The FCI shall display the voters list on the notice boards and other conspicuous places and shall also supply copies thereof to each of the unions for raising objections, if any. The unions will file the objections to the Returning Officer within the stipulated period and the decision of the Returning Officer shall be final.
(vi)The FCI shall make necessary arrangement to:
(a)give wide publicity to the date/dates of election by informing the unions and by affixing notices on the notice boards and also at other conspicuous places for the information of all the workers;
(b)print requisite number of ballot papers in the pro forma prescribed by the CLC incorporating therein the names of all the participating unions in an alphabetical order after ascertaining different symbols of respective unions;
(c)the ballot papers would be prepared in the pro forma prescribed by the CLC in Hindi/English and the regional language concerned;
(d)set up requisite number of polling stations and booths near the premises where the workers normally work; and
(e)provide ballot boxes with requisite stationery, boards, sealing wax etc.
(vii)The Returning Officer shall nominate Presiding Officer for each of the polling station/booth with requisite number of polling assistants to conduct the election in an impartial manner. The Presiding Officers and the polling assistants may be selected by the Returning Officer from amongst the officers of the FCI.
(viii)The election schedule indicating the dates for filing of nominations, scrutiny of nomination papers, withdrawal of nominations, polling, counting of votes and the declaration of results shall be prepared and notified by the Returning Officer in consultation with the FCI. The election schedule shall be notified by the Returning Officer well in advance and at least one months time shall be allowed to the contesting unions for canvassing before the date of filing the nominations.
(ix)To be eligible for participating in the election, the unions must have valid registration under the Trade Unions Act, 1926 for one year with an existing valid registration on the first day of filing of nomination.
(x)The Presiding Officer shall allow only one representative to be present at each polling station/booth as observer.
(xi)At the time of polling, the polling assistant will first score out the name of the employee/workman who comes for voting, from the master copy of the voters list and advise him thereafter to procure the secret ballot paper from the Presiding Officer.
(xii)The Presiding Officer will hand over the ballot paper to the workman/employee concerned after affixing his signatures thereon. The signatures of the workman/employee casting the vote shall also be obtained on the counterfoil of the ballot paper. He will ensure that the ballot paper is put inside the box in his presence after the voter is allowed to mark on the symbol of the candidate with the inked rubber stamp in camera. No employee/workman shall be allowed to cast his vote unless he produces his valid identity card before the Presiding Officer concerned. In the event of non-production of identity card due to any reason, the voter may bring in an authorisation letter from his controlling officer certifying that the voter is the bona fide employee of the FCI.
(xiii)After the close of the polling, the Presiding Officer shall furnish detailed ballot paper account in the pro forma prescribed by the CLC indicating total ballot papers received, ballot papers used, unused ballot papers available etc. to the Returning Officer.
(xiv)After the close of the polling, the ballot boxes will be opened and counted by the Returning Officer or his representative in the presence of the representatives of each of the unions. All votes which are marked more than once, spoiled, cancelled or damaged etc. will not be taken into account as valid votes but a separate account will be kept thereof.
(xv)The contesting unions through their representatives present at the counting place may be allowed to file applications for re-counting of votes to the Returning Officer. The request would be considered by the Returning Officer and in a given case if he is satisfied that there is reason to do so he may permit re-counting. However, no application for re-counting shall be entertained after the results of the votes are declared.
(xvi)The result of voting shall be compiled on the basis of valid votes polled in favour of each union in the pro forma prescribed by the CLC and signatures obtained thereon from the representatives of all the unions concerned as a proof of counting having been done in their presence.
(xvii)After declaring the results on the basis of the votes polled in favour of each union by the Returning Officer, he will send a report of his findings to the CLC.
(xviii)The union/unions obtaining the highest number of votes in the process of election shall be given recognition by the FCI for a period of five years from the date of the conferment of the recognition.
(xix)It would be open to the contesting unions to object to the result of the election or any illegality or material irregularity which might have been committed during the election. Before the Returning Officer such objection can only be raised after the election is over. The objection shall be heard by the CLC and disposed of within 30 days of the filing of the same. The decision of the CLC shall be final subject to challenge before a competent court, if permitted under law."
16.The second respondent shall conduct election taking into consideration the above principles laid down by the Supreme Court, with necessary modifications, wherever necessary. The process of elections by secret ballot shall be commenced within six weeks from the date of receipt of a certified copy of this order.
17. There is no order as to costs in the writ petition. M.P.No.1/2010 is closed.
tar
To
1.Principal Secretary to Government,
Ministry of Labour and Employment,
Secretariat, Fort St.George, Chennai 9.
2.Assistant Labour Commissioner,
Sriperumbudur,
Kanchipuram District
Wednesday, May 4, 2011
TU OFFICE BEARER CAN PARTICIPATE IN DOMESTIC ENQUIRY
IMPORTANT AND HISTORICAL JUDGEMENT ON TU OFFICE BEARES TO PARTICIPATE IN DOMESTIC ENQUIRY ON BEHALF OF DELINQUENT MEMBER.PL SEE PATA 48,57,59
==============================================================================
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12 / 04 / 2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.NOS.19001 TO 19004 OF 2009
AND CONNECTED MISCELLANEOUS PETITIONS
The Management of
M/s. Chidambaram Shipcare Pvt. Ltd.,
No.38, Second Line Beach,
First Floor, Chennai 600 001.
Rep. by Managing Director ... Petitioner in all WPs'
Versus
1.The Presiding Officer
Principal Labour
Chennai. ... 1st Respondent
in all WPs'
2.M.Baskar ... 2nd Respondent
in W.P.No.19001 / 2009
3.R.Yourey ... 2nd Respondent
in W.P.No.19002 / 2009
4.M.Murray ... 2nd Respondent
in W.P.No.19003 / 2009
5.K.Munusamy ... 2nd Respondent
in W.P.No.19004 / 2009
PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorari, calling for the records connected with A.P.Nos.1 of 2007, 2 of 2007, 3 of 2007 and 4 of 2007 respectively, in I.D.No.587 of 1995 on the file of the 1st respondent Principal Labour Court, Chennai and to quash the common order dated 30.06.2009 made therein.
For Petitioner : Mr.Sanjay Mohan
for M/s.Ramasubramaniam & Associates
For Respondent-2
in all WPs' : Mr.K.V.Dhanapalan
for M/s.Fennwalter Association
C O M M O N O R D E R
The writ petitioner is a Shipping Industry. The second respondent in each of the writ petition was the workman employed by the writ petitioner. According to the workmen, there were about 110 permanent workers including staff were employed by the writ petitioner. The Socialist Workers Union (Shortly "the Union") is the only Trade Union functioning in the writ petitioner company and all the permanent workmen were its Members.
2.According to the workmen, the writ petitioner failed to resolve the dispute relating to revision of wages and other service conditions forcing the Union to take up the matter before the Conciliation Officer under the Industrial Disputes Act (Shortly "the Act"). The conciliation ended in failure resulting in the Government passing an order referring the industrial dispute relating to their charter of demands for adjudication by the first respondent Labour Court. The first respondent Labour Court took it on file as I.D.No.587 of 1995. Ever since the dispute was pending, the writ petitioner started victimising the workers for their legitimate trade union activities. 10 workmen were not made permanent though they put in long years of service. Hence, the Union raised a dispute regarding their permanency and the industrial dispute relating to the permanency is pending in I.D.No.472 of 1998 before the first respondent.
3.In 2002, the writ petitioner imposed a partial lay off to all the workers and the Union raised an industrial dispute questioning the lay off and failure report dated 15.12.2003 was submitted as the conciliation ended in failure. In the meantime, 19 permanent workers were terminated on the ground that Chidambaram Ship Care was closed. According to the workmen, the Management took a dubious stand that there are two industries namely, Chidambaram Ship Care and Chidambaram Ship Care Pvt. Ltd., and those establishments are different entities. It was a malafide act to victimise the workmen.
4.According to the workmen, they were not allowed to report duty on 06.02.2004 and the workmen sent telegram to the Management about the same. The Management put up a notice on 06.02.2004 stating that the workmen indulged in strike. The Union also sent a letter dated 11.02.2004 to the writ petitioner complaining unfair labour practice and illegal lay off.
5.The Management sent a letter dated 14.02.2004 to the individual workers complaining that the workmen were on strike. In the said letter, it is also admitted that the Management imposed lay off. The Management sent another letter to the workers on 18.02.2004 stating that they have suspended the operations carried on by Chidambaram Ship Care from 09.02.2004. According to the Union, the Management was still carrying on their business with Casual Labourers and the alleged suspension of operation is false.
6.The Union wrote letters dated 16.02.2004, 19.02.2004 and 23.02.2004 to the Labour Department to initiate action against the writ petitioner for committing unfair labour practice. While so, according to the Union, the writ petitioner sought to remove the machineries clandestinely on 26.02.2004 and they apprehended insecurity to their employment and they protested for removing the machineries.
7.On the other hand, it was the claim of the writ petitioner that the respondent workmen and others prevented the lorry bearing registration No.TN01-J-3124 from getting it loaded with the materials and threatened, intimidated and abused the loading workmen in filthy language and further, they obstructed the lorry from proceeding further to go out of the work spot.
8.The alleged incident on 26.02.2004 became the subject matter of charge memo dated 28.02.2004 issued to five workmen, including the four contesting respondents involved in the batch of writ petitions. The allegation made therein was that they prevented the loadmen from loading the materials in the lorry and they abused and intimidated the loadmen and that they prevented the lorry from going outside the factory premises. They committed misconduct under Clause 16 (j) of the Model Standing Orders.
9.The workmen gave explanation denying the charges. Not satisfied with the explanation, a common enquiry was conducted by an outsider. In the enquiry, three witnesses were examined on the side of the Management and five witnesses were examined on the side of the workmen. Documents Exs. M1 to M7 were marked on the side of the Management and Exs.W1 to W17 were marked on the side of the workmen.
10.The Enquiry Officer submitted his report dated 25.08.2004 holding that the charges were established. Based on his findings, the respondent workmen herein were dismissed from service by an order dated 20.10.2004. However, proceeding was dropped as against one workman by name Mr.A.Raju stating that he reached the age of superannuation during the pendency of the disciplinary proceedings. Along with the dismissal order, the workmen were given one month wages in compliance with Section 33(2)(b) of the Act.
11.Since I.D.No.587 of 1995 was pending before the first respondent, the writ petitioner filed applications in A.Nos.1 to 4 of 2007 respectively under Section 33(2)(b) of the Act seeking approval of the dismissal order. The respondent workmen filed counter statement in the approval applications questioning the validity of the enquiry. It was their case that the enquiry was conducted in violation of principles of natural justice. They pleaded that though the Presenting Officer of the Management was a Law Graduate, who was legally trained, the workmen were not permitted to have the assistance of the Officer Bearer of the Union Mr.Dhanapalan, on the ground that he was a practicing Advocate. It was their further case that the Enquiry Officer refused permission to examine Mr.Dhanapalan as a witness in the enquiry on behalf of the workmen. Hence, the enquiry was conducted in violation of principles of natural justice. It was also pleaded that the dismissal was not in accordance with the Model Standing Orders, as the past record was not taken into account as contemplated under the Model Standing Orders while dismissing them from service and hence, the dismissal orders were passed in contravention of Section 33(2)(b) of the Act. It was their further case that the findings of the Enquiry Officer were perverse and that the action of the writ petitioner amounts to victimisation and the writ petitioner committed unfair labour practices. Before the first respondent, both the parties did not let in any oral evidence and only documents Exs.P1 to P51 were marked on the side of the writ petitioner.
12.After hearing both sides, the first respondent passed the common order dated 30.06.2009 in A.Nos.1 to 4 of 2007 in I.D.No.587 of 1995 rejecting the approval applications on the ground that enquiry was not conducted fairly. The approval applications were also rejected on other grounds namely the findings of the Enquiry Officer were perverse and that the writ petitioner was guilty of victimisation and also committed unfair labour practices. Challenging the same, the petitioner has filed the present writ petitions.
13.Heard the submissions made on either side.
14.The learned counsel for the petitioner submitted that there is no certified Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946 and the Model Standing Orders prescribed under the Industrial Employment (Standing Orders) Act, 1946 governed the conditions of service of the workmen employed by the writ petitioner. The Model Standing Orders do not provide for the assistance of a Lawyer and since the Union leader, whose assistance was sought by the workmen, was a practicing Lawyer, the workmen are not entitled to have the assistance of a Lawyer under the garb of a Trade Union leader. The learned counsel for the petitioner also submitted that the findings of the first respondent as to victimisation and perversity of the findings of the Enquiry Officer, have no basis. He made elaborate submissions on the merits (facts) of the case.
15.The learned counsel for the petitioner relied on the following decisions in support of his contention that the workmen are not entitled to have the assistance of a Trade Union leader.
(i)Judgment of the Honourable Apex Court in BIECCO LAWRIE LTD., VS. STATE OF WEST BENGAL [2009 (10) SCALE 334]
(ii)Division Bench judgment of this Court in STATE BANK OF INDIA REP. BY THE ASSISTANT GENERAL MANAGER VS. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL [2007(2)LLJ 968].
(iii)Judgment of this Court in S.MUTHURAMAN VS. THE PRESIDING OFFICER, LABOUR COURT AND THE MANAGEMENT OF SREE NITHYAKALYANI TEXTILES LTD. [2003 (III) LLJ 52]
(iv)Judgment of the Honourable Apex Court in D.G.RAILWAY PROTECTION FORCE AND OTHERS VS. K.RAGHURAM BABU [2008 (4) SCC 406]
(v)Judgment of this Court in S.SINGARAVELU VS. GENERAL MANAGER, SOUTHERN RAILWAY in W.P.No.13196 of 2001 (decided on 13.07.2007)
(vi)Judgment of the Honourable Apex Court in BROOKE BOND INDIA (PRIVATE) LTD. VS. SUBBA RAMAN [1961 (II) LLJ 417]
(vii)Judgment of the Honourable Apex Court in EMPLOYERS MANAGEMENT WEST BOKARO COLLIERY OF TISCO LTD. VS. CONCERNED WORKMAN, RAM PRAVESH SINGH [2008 (3) SCC 729]
(viii)Judgment of the Honourable Apex Court in SYNDICATE BANK VS. VENKATESH GURURAO KURATI [2006 (3) SCC 150]
(ix)Judgment of the Honourable Apex Court in HARINARAYAN SRIVASTAV VS.UNITED COMMERCIAL BANK [1997 (4) SCC 384]
(x)Judgment of the Honourable Apex Court in BHARAT IRON WORKS VS. BHAGUBHAI BALUBHAI PATEL [1976 (1) SCC 518]
The learned counsel for the petitioner also relied on some judgments in support of his contention that the first respondent exceeded its jurisdiction, while dealing with the findings of the Enquiry Officer and as to its findings on victimisation.
16.On the other hand, the learned counsel for the workmen submitted that there is no infirmity in the findings of the first respondent that the enquiry was not conducted fairly and the enquiry was conducted in violation of principles of natural justice. The learned counsel took me through the enquiry proceedings and submitted that the Presenting Officer was a Man of Law and therefore, equal opportunity requires that the workmen should also be permitted to have the assistance of a Trade Union leader or an Advocate of their choice. The learned counsel further submitted that there is no prohibition in the Model Standing Orders to have the assistance of a Trade Union leader or an Advocate. According to him, the Model Standing Orders is silent on the assistance to workmen in the domestic enquiry. It was submitted that the Model Standing Orders is also silent as to the appointment of Presenting Officer by the writ petitioner in the domestic enquiry to represent the case of the writ petitioner. Since they travelled beyond the Model Standing Orders and had the benefit of a Presenting Officer, that too a Law Graduate, the workmen are also entitled to have the assistance of a Trade Union Leader or a Lawyer.
17.The learned counsel for the workmen submitted that when the Presenting Officer of the writ petitioner Management was a legally trained mind, even if the Model Standing Orders prohibit assistance of Trade Union leader or an Advocate, the workmen are also entitled to have the assistance of a Trade Union leader or an Advocate. It was further submitted that the Model Standing Orders is silent as to the appointment of an "outsider" as the Enquiry Officer and there is no provision providing for an outsider as an Enquiry Officer. If the writ petitioner had chosen to appoint an outsider as an Enquiry Officer and also a Presenting Officer with legally trained mind, when there is no provision in the Model Standing Orders, the same yardstick should be applied in the case of workmen by permitting them to have the assistance of the Office bearer of the Trade Union. The learned counsel further submitted that the findings of the first respondent as to the perversity of the findings of the Enquiry Officer does not suffer from any infirmity. It was also submitted that it is a clear case of victimisation for trade union activities as almost all the work force were wiped out during the pendency of the industrial dispute in I.D.No.587 of 1995 claiming increase in wages and improvement in the conditions of service.
18.The learned counsel for the workmen submitted that taking into account the scheme of the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 and the provisions of the Industrial Employment (Standing Orders) Act, 1946, the workmen have absolute right to have the assistance of an Office Bearer of a Trade Union in domestic enquiry.
19.The learned counsel for the workmen relied on the following judgments in support of his contention:
i)Judgment of the Honourable Apex Court in CHAIRMAN AND MANAGING DIRECTOR, HINDUSTAN TELEPRINTERS LTD., VS. M.RAJAN ISAAC [2005 (2) LLN 853]
ii)Judgment of the Honourable Apex Court in THE BOARD OF TRUSTEES OF THE PORT OF BOMBAY VS. DILIPKUMAR RAGHAVENDRANATH NADKARNI [1983 (1) LLJ 1]
iii)Judgment of this Court in K.KABALI VS. THE ASSISTANT SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY [1999 (1) CTC 450]
iv)Division Bench judgment of the Kerala High Court in UNION OF INDIA VS. KARUNAKARAN NAIR [1986 (1) LLJ 124]
v)Judgment of the Delhi High Court in DELHI BOTTLING CO. PVT. LTD., VS. A.N.TRIPATHI [1994 (1) LLJ 1207]
vi)Division Bench judgment of the Karnataka High Court in G.V.ASWATHANARAYANA VS. CENTRAL BANK OF INDIA [1993 (1) LLN 689]
vii)Division Bench judgment of the Karnataka High Court in A.R.KAVI VS. KARNATAKA AGRO INDUSTRIES CORPORATION [1993 (1) LLN 691]
viii)Judgment of the Bombay High Court in RAM NARESH TRIPATI VS. S.D.RANE [1992 (II) LLJ 519]
ix)Division Bench judgment of the Bombay High Court in GHATGE PATIL TRANSPORT PVT. LTD. VS. B.K.ETALE [1984 (II) LLJ 121]
x)Division Bench judgment of the Bombay High Court in VENKATRAMAN SAMBAMURTHY VS. UNION OF INDIA [1986 (II) LLJ 62]
xi)Judgment of the Honourable Apex Court in J.K.AGGARWAL VS. HARYANA SEEDS DEVELOPMENT CORPORATION LTD. [1991 (II) LLJ 412]
The learned counsel also relied on some other judgments on merits to sustain the order of the first respondent on merits and victimisation.
20.I have considered the submissions made on either side and perused the entire materials available on record.
21.The issue arises for consideration in all these writ petitions is whether the employer conducted a fair enquiry complying with the principles of natural justice and whether the workmen were given equal opportunity in defending them in the enquiry.
22.The workmen have categorically stated in their counter filed before the first respondent that the enquiry was not held fairly and properly and that they were not given reasonable opportunity. It was further pleaded that the enquiry was conducted in violation of principles of natural justice. On seeing the counter statement, the writ petitioner did not choose to file an application seeking permission to let in evidence, in the event, the first respondent comes to the conclusion that the enquiry was not fairly conducted. In those circumstances, the workmen would succeed, if the preliminary point as to the unfairness of the enquiry, is held in their favour and there is no need to go into the merits of the case and other issues.
23.In this regard, it is relevant to refer the judgment of the Honourable Apex Court in Shambhu Nath Goyal vS. Bank of Baroda [1983 (4) SCC 491] wherein, it has been held that in an application filed by the employer under Section 33(2)(b) of the Act seeking approval of dismissal, if the workman questioned the fairness of the domestic enquiry, that preceded the order of dismissal, in the counter statement filed opposing the approval application and if the employer failed to file proper application on seeing the counter of workman, seeking opportunity to let in evidence to substantiate the dismissal order, if the finding on the issue as to fairness of the enquiry was held against them, the Labour Court / Tribunal could straight away reject the approval application on rendering a finding on the issue relating to fairness of the enquiry against the employer, without going into merits and other aspects of the matter. This judgment was later approved by the Constitution Bench of the Honourable Apex Court in KARNATAKA STATE ROAD TRANSPORT CORPN. VS. LAKSHMIDEVAMMA (SMT) AND ANOTHER [2001 (5) SCC 433]. Therefore, if the first respondent is correct in holding that the enquiry was not fairly conducted, I need not go into merits of the case and the employer must fail, as the learned counsel for the writ petitioner fairly submitted that they did not file any application seeking opportunity to let in evidence.
24.The first respondent held that since the workmen were not permitted to have the assistance of the office bearer of their Union, who was a practicing advocate, when the writ petitioner had the benefit of law graduate to represent their case in the domestic enquiry, the enquiry was not fairly conducted. Now, the correctness of the aforesaid conclusion of the first respondent is the issue that has to be answered.
25.The following passage from the proceedings of the Enquiry Officer is extracted hereunder:
VERNACULAR (TAMIL) PORTION DELETED
The above passage makes it very clear that the Enquiry Officer has recorded that the Presenting Officer is a Man of Law. However, it is held that the workmen could not bring a Lawyer under the garb of a Trade Union leader, while the Presenting Officer was not a practicing advocate.
26.The aforesaid action of the Enquiry Officer based on which the dismissal order was passed, was not approved by the first respondent and the first respondent held that the enquiry was not a fair enquiry, since the workmen, who were pitted against a legally trained mind in the domestic enquiry, were not permitted to have the assistance of the office bearer of their Union. In this regard, paras 10 to 12 of the order of the first respondent, which is impugned in the present writ petitions, are extracted hereunder:
"10. While the petitioner/management would put forth a plea that in the conduct of the enquiry, principles of natural justice have been followed, that the enquiry finding was not perverse, that there was no element of victimisation, that other procedural requirements such as payment of one month's salary after passing of the order of dismissal were met, that the requirement that an approval petition has got to be filed simultaneously has also been satisfied. The respondents/workmen would contend that the domestic enquiry itself is vitiated on the ground that they were refused assistance of an advocate in the conduct of the domestic enquiry even though the management representative S.Govindarajulu was himself a law graduate, that the trade union leader of the respondents was not permitted to participate in the domestic enquiry, that the Enquiry Officer did not permit Thiru. Dhanapalan a trade union leader-cum-advocate to examine himself as a witness.
11.As to the request of the workmen to avail the assistance of an advocate in the domestic enquiry, reliance is placed on 2005(2)L.L.N.853(Chairman and Managing Director, Hindustan Teleprinters Limited, Chennai and M.Rajan Isaac) a Division Bench judgment of our High Court. It has been strikingly observed in the said judgment that ordinarily the principles of natural justice do not postulate a right to be represented or assisted by a lawyer in the departmental proceedings. But there is an exception and if the delinquent officer or the workman as the case may be is pitted against a legally trained person in the departmental enquiry and the delinquent officer or the workman is not that much familiar with the legal procedures involved in the departmental enquiry, justice would require that the officer or workman who has no legal background is represented through a lawyer. It has further been observed that in the absence of such expertise by the officer, the denial of assistance of a legally trained person would render the disciplinary proceedings vitiated. The principle in the said decision has already been dealt with elaborated and laid down in (1) 1986 1 LLJ 124 - Kerala High Court (Union of India and Karunakaran Nair) (2) 1986 II L.L.J 62 Bombay High Court (Venkatraman Sambamurthy and Union of India and another) (3) 1991 2 LLJ 412-Supreme Court (J.K. Aggarwal and Haryana Seeds Development Corpn. Ltd and others) (4) 1993 I LLN 689 (Karnataka High Court (G.V.Aswathanarayana and Central Bank of India and others) (5) 1999 I CTC 450 Madras High Court. A close reading of the postulates evolved by the superior courts would only show that when a workman is pitted against a legally trained person, it is more in the nature of fight between two unequals and law disapproves such a placement of the worker as against the management represented by a legally trained person. A pertinent reference may be made at this juncture to a decision of Hon'ble Supreme Court of India reported in 2008(3) L.L.N.60 (SC). It has been held that there is no vested right to claim assistance of a counsel or any other person and when the rules permit only restricted or controlled assistance, no principle of justice is isolated. May be that denial of right to claim assistance of a counsel may not be violative of the principles of natural justice, but in the event of the workman being confronted by the management with a legally trained person, per force, the workman has got to be extended the facility of a lawyer or legally trained person so that ends of justice are better served. In the case at hand the grievance of the respondents is that the assistance of a lawyer has been denied to them, when the representative of the management was a law graduate in his own right and this circumstance would vitiate the enquiry. The Management representative by name Govindarajulu being a law graduate, has necessarily to be credited with knowledge of law and procedure. It may be that he might be in the H.R.D. Section of the petitioner management, but still having been possessed of a degree in law. It would not be in the fitness of things to treat him not as a legally trained person, notwithstanding the fact that he has not been enrolled as an advocate. If so, the refusal on the part of the Enquiry Officer in affording an opportunity to the respondents to engage a lawyer of their choice so as to assist them in the enquiry, in the context of the management being represented by a legally trained person could amount to disregard of principles of natural justice, for after all to presume a law graduate as not one legally trained would be an anathema.
12.There are no standing orders intended to be applicable to the workmen. If so, the model standing orders will have to be taken into account. The model standing orders do not provide for extending the facility of a lawyer. But the principles that emerge from the decisions of the superior courts would lay down candidly the principles governing the conduct of domestic enquiries and it would be quite clear that when the management is represented by a legally trained person, the worker has to be extended the facility of a legally trained person. Obviously, in this case, the worker having been refused permission in this behalf, I am of the view that this state of affairs would only vitiate the enquiry."
27.The first respondent Labour Court categorically held that by refusing permission of the office bearer of the Trade Union, the workmen were denied equal opportunity, when they were pitted against a Presenting Officer, who was a legally trained person.
28.It is not in dispute that the request of the workmen to have the assistance of an office bearer of the Trade Union was declined on the ground that the office bearer, whose assistance was sought, is a practicing advocate. It is also not in dispute that the writ petitioner/Management was represented in the enquiry by a Presenting Officer, who was a Man of law. Further, the Presenting Officer worked in various establishments as Manager (HRD & IR) for nine years and had been working as Manager (HRD & IR) in the writ petitioner company for the past five years. As a Manager dealing with Human Resources and Industrial Relations, he should have acquired rich experience in dealing with disciplinary matters. Being a Law Graduate with such vast experience dealing with industrial relations, he is certainly a legally trained mind and therefore, workmen also should be provided the assistance of their Union leader, even if the leader is a practicing advocate.
29.The various judgments relied on by the learned counsel for the petitioner in support of his contention that the workmen are not entitled to have the assistance of the Office bearers of the Trade Union, are not applicable to the facts of this case.
30.In the judgment of the Honourable Apex Court in Biecco Lawrie Ltd. Vs. State of West Bengal [2009 (10) SCALE 334], the dispute relating to non-employment of a workman was referred to adjudication by Industrial Tribunal in West Bengal. The Tribunal held that the domestic enquiry was conducted in violation of principles of natural justice. After holding so, the employer let in evidence and the workman let in contra evidence. The aforesaid facts are culled out from the following passage in para 5 of the judgment.
"5..... the dispute was referred under Section 7A of the Industrial Disputes Act on 2nd of April 1987 by the Labour Department, Government of West Bengal to the Vth Industrial Tribunal, West Bengal for adjudication. Both the parties filed their written statements presenting their cases before the Tribunal and on 9th of October, 1990 the Tribunal held that the inquiry conducted by Mr.P.K.Mukherjee, the Inquiry Officer, was in violation of the principles of natural justice and accordingly the matter was heard afresh on merits. The witnesses of the appellants were examined and cross examined. The respondent was also examined and cross examined....."
Initially, the Tribunal held against the workman both on the fairness of the enquiry and also on merits, based on the fresh evidence let in before the Tribunal. The workman took up the matter before the High Court and the matter was remanded to the Tribunal. On remand, the Tribunal held in favour of the workman. The award of the Tribunal was challenged by the employer. The learned single Judge confirmed the award and the Division Bench also confirmed the order of the learned single Judge. The matter was taken to the Honourable Apex Court and the Apex Court reversed all the judgments and restored the earlier findings of the Tribunal. In my view, the said judgment is of no use, since the enquiry was set aside and parties let in fresh evidence before the Tribunal.
31.The Division Bench judgment of this Court in STATE BANK OF INDIA REP. BY THE ASSISTANT GENERAL MANAGER VS. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL [2007 (2) LLJ 968] relied on by the learned counsel for the petitioner relates to the dismissal of an employee of the Bank who was charged for misappropriation. The Tribunal held that the Enquiry Officer and the Presenting Officer were not legally trained persons and therefore, the workman could not insist for the assistance of a Lawyer. The Tribunal recorded a finding that the enquiry proceedings was fair and proper. However, as the enquiry was conducted exparte, in order to give a fair opportunity to the workman, the Tribunal held that the findings of the enquiry officer is vitiated. A Division Bench of this Court went into detail and found that the workman was given a lot of opportunities and in spite of the same, he remained exparte and therefore, the Tribunal was not correct in holding that the findings of the exparte enquiry was perverse. In fact, as stated above, the Tribunal held that the enquiry was conducted fairly and properly and that the workman could not insist for the assistance of a Lawyer, since the Bank was not represented by a legally trained mind in the enquiry. Hence, in my view, the said judgment is of no use to the case on hand. However, para 14 of the judgment relies on an another Division Bench judgment of this Court which is in favour of the workman and the same is extracted hereunder:
"14.The other decision cited by the learned counsel for the writ petitioner is 2005 (2) LLJ 610 Chairman and Managing Director, Hindustan Teleprinters Ltd., Chennai v. M.Rajan Isaac, wherein the Division Bench of this Court has held,
12.The general rule is that in the absence of rules an employee has no right to seek for assistance of a lawyer in the departmental enquiry. Ordinarily the principles of natural justice do not postulate a right to be represented or assisted by a lawyer in the departmental proceedings. But there is an exception and the question would be different if the delinquent officer or the workman, as the case may be; is pitted against a legally trained person in the departmental enquiry and the delinquent officer or the workman is not that much familiar with the legal procedures involved in the departmental enquiry. When a presenting officer is stated to be a man of law, justice would require that the officer or workman who has no legal background is represented through a lawyer. Though the quasi-judicial authorities holding domestic enquiries are not governed by strict and technical rules of evidence, yet they are governed by the rule of equity and natural justice and they must act in fairness. This concept is to ensure that there is no failure of justice."
The aforesaid judgment reported in 2005 (2) LCJ 610 was relied on by the first respondent to render its findings.
32.In the judgment of this Court in S.MUTHURAMAN VS. THE PRESIDING OFFICER, LABOUR COURT AND THE MANAGEMENT OF SREE NITHYAKALYANI TEXTILES LTD. [2003 (III) LLJ 52] relied on by the writ petitioner, the workmen were denied the assistance of an Advocate or a Trade Union leader on the ground that the Standing Orders do not provide for the same and that the Management was not represented by a legally trained mind. At this juncture, it is relevant to extract para 8 of the said judgment .
"8.In this case, the management was not represented by legally trained persons. So, the question of ensuring the balancing of the scales by allowing the workmen to have the assistance of legally trained persons did not arise."
However, it has been held in para 14 of the said judgment that that if one of the parties had the benefit of legal assistance, the other party should also have the same benefit. In this regard, para 14 of the said judgment is extracted hereunder, which is in favour of the workmen.
"14.Unless there are compelling reasons, the need to provide legal assistance to one of the parties when the other party had the benefit of such assistance being a fundamental matter, the Courts have held that notwithstanding the absence of a provision for granting such assistance in the standing orders, the larger requirements of fairness mandates that management who want to have the benefit of the assistance of such legally trained persons must recognise a similar right in the delinquent workmen against whose conduct the enquiry is being held. Where, however, in the domestic enquiry, the management merely participate through its own officers who are not legally trained, workmen cannot assert a right to be represented through another, unless the standing orders provide for the same, or the Enquiry Officer permits such assistance."
In para 13 of the said judgment, the Court also felt that it is desirable that the delinquent workman should be permitted to have the assistance of the office bearer of the Trade Union or its member during the domestic enquiry. However, what is desirable is not always mandated by law. In this regard, para 13 of the said judgment is extracted hereunder:
"13.It is eminently desirable that a delinquent workman be permitted to have the service of a co-worker or, the Office bearer of the trade union of which he is a member, at the domestic enquiry. What is desirable is, however, not always what is mandated by law. Statutory provisions are not to be re-written and requirements which are not part of the statute, read into the same."
This Court also noted in para 9 of the said judgment that the Model Standing Orders framed by the Central Government provides for the assistance of an office bearer of the Trade Union and the same is extracted hereunder:
"9............. Although the model standing orders prescribed under the Central Rules provide for representation of the delinquent workman by an office bearer of a trade union of which that workman is a member, similar provision is not made in the model standing orders under the State Rules."
Thus, the judgments relied on by the writ petitioner, far from helping them, supports the conclusion of the first respondent.
33.In the judgment of the Honourable Apex Court in D.G.RAILWAY PROTECTION FORCE AND OTHERS VS. K.RAGHURAM BABU [2008 (4) SCC 406] relied on by the writ petitioner, it has been held that there is no vested or absolute right to any charge sheeted employee to represent either through a counsel or through any other person, unless the statute or rules provides for such a right. It was not the case where the Department was represented by a legally trained person. Hence, the said judgment is of no use.
34.This Court in the judgment in S.SINGARAVELU VS. GENERAL MANAGER, SOUTHERN RAILWAY in W.P.No.13196 of 2001 (decided on 13.07.2007) has held that the Management was not represented by a Man of Law and the CBI Inspector could not be termed as a legally trained person. In the said context, it was held that the employee was not entitled to have the assistance of a Lawyer. Hence, the said judgment is not applicable to the case on hand. In fact, para 14 of the said judgment is in favour of the workmen, wherein it has been held that when the Management availed the services of the Presenting Officer, who is a legally qualified person, the workmen is entitled to have the assistance of a Lawyer. In this regard, para 14 is extracted hereunder:
"14.In the case of Indian Airlines Corporation vs. N.Sundaram 1992 (II) L.L.N. 811, the Division Bench of this Court while dealing with Indian Airlines Employees Standing Orders (Regulations) Concerning Discipline and Appeals, had to deal with Standing Order 32, which reads as follows:
An employee may be permitted, if he so desires, to have, under his own arrangements, the assistance of a "friend" during the course of the enquiry. Such a "friend" must be an employee of the corporation. No outside representation shall be permitted in any circumstances.
In that case, one Assistant Manager (Personnel) who was a legally qualified and well trained in disciplinary proceedings, was availed by the Management as a Presenting Officer. When the delinquent has requested for representation through a lawyer, that was rejected. It was in those circumstances observed that, "the Corporation did have the services of a legally qualified and trained person, who had considerable experience in the conduct of disciplinary proceedings." The Division Bench has further held that the delinquent therein was in a disadvantageous position while meeting such a Presenting Officer, who was well qualified, and held that the delinquent was entitled for relief. However, on the factual situation in this case, I do not think that the said judgment has any application since the Presenting Officer appointed in the present case is not a legal practitioner or legally qualified person and he was a C.B.I. Inspector."
35.In the judgment of the Honourable Apex Court in BROOKE BOND INDIA (PRIVATE) LTD. VS. SUBBA RAMAN [1961 (II) LLJ 417] relied on by the writ petitioner, the workman remained exparte on the ground that he was was not permitted to have the assistance of an outsider to defend him in the enquiry. It was not the case that the Management was represented by a legally trained mind. Hence, the same is not applicable to the case on hand. In fact, the following passage indicates that had the workman wanted representation from the Trade Union, the Court could have considered differently.
"..... Neither of them apparently wanted to be represented by somebody from the union...."
36.In my view, none of the judgments relied on by the learned counsel for the petitioner laid down that when the employer is represented by a Presenting Officer, who is a Law Graduate, even then the workmen could be denied the assistance of a Lawyer or a Trade Union leader. Just because the Trade Union leader happened to be a practicing advocate, the Enquiry Officer was not correct in rejecting his representation in the enquiry, particularly, when the Presenting Officer is a legally trained person. Hence, I do not find any infirmity in the findings of the first respondent in holding that the enquiry was not conducted fairly.
37.The judgments relied on by the learned counsel for the workmen supports the proposition that whenever the Management is represented by a Man of Law, the workmen should also be permitted to have assistance of an advocate irrespective of the fact whether the the Standing Orders provides for assistance of a Lawyer or not. Those judgments are considered hereunder.
38.In the First Bench judgment of this Court relied on by the learned counsel for the workmen in CHAIRMAN AND MANAGING DIRECTOR, HINDUSTAN TELEPRINTERS LTD. VS. M.RAJAN ISAAC [2005 (2) L.L.N. 853), it has been categorically held that if the workman was pitted against a legally trained person in the domestic enquiry, he is entitled to have the assistance of a legally trained person. In this regard, para 14 of the said judgment is extracted hereunder:
"14.From the above rival stand, it is clear that the averment of the respondent that the presenting officer was a legally trained person was not denied by the appellant, except saying that the respondent was denied the assistance of a legal practitioner as the rules do not provide for the same. The Supreme Court in Mintu Bhakta v. State of West Bengal [(1973) 4 SCC 85], has held that "a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation and therefore the allegation remains unanswered and must consequently be accepted in the absence of any cogent reply". In the absence of specific denial, the claim of the respondent that he was pitted against a legally trained person who is familiar with the procedures of the domestic enquiry including the legal consequences thereof should be accepted. In the absence of such expertise by the officer, the denial of assistance of a legally trained person would render the disciplinary proceedings vitiated...."
39.Likewise, in the judgment of the Honourable Apex Court in THE BOARD OF TRUSTEES OF THE PORT OF BOMBAY VS. DILIPKUMAR RAGHAVENDRANATH NADKARNI AND OTHERS [1983 (I) LLJ 1], the following passage from para 11 supports the order of the first respondent.
"11....... In our view we have reached a stage in our onward march to fair play in action that wherein an enquiry before a Domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. This view has been taken by a learned single Judge and while dismissing the appeal in limine approved by the Division Bench of the High Court commends to us. Therefore, this appeal is liable to be dismissed."
40.This Court followed the aforesaid judgment of the Honourable Apex Court in its judgment in K.KABALI VS. THE ASSISTANT SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY [1999 (1) CTC 450] and held that the enquiry was vitiated, taking note of the fact that the employer was represented by a legally trained person, while the employee was not given a similar opportunity.
41.The Division Bench judgment of the Kerala High Court in UNION OF INDIA VS. KARUNAKARAN NAIR [1986 (1) LLJ 124] held that when a Government employee is pitted against a legally trained mind in the departmental enquiry, he is entitled to have the assistance of a lawyer.
42.The Delhi High Court in its judgment in DELHI BOTTLING CO. PVT. LTD. VS. A.N.TRIPATHI AND OTHERS [1994 (1) LLJ 1207] took note of Rule 14(4)(ba) of the Model Standing Orders framed by the Central Government under the Industrial Employment (Standing Orders) Central Rules, 1946 that provides for assistance of an officer Bearer of the Union and when the same was declined, the Court held that the enquiry was vitiated.
43.In the Division Bench judgment of the Karnataka High Court in G.V.ASWATHANARAYANA VS. CENTRAL BANK OF INDIA [1993 (I) LLN 689], even when the employer was not represented by a legally trained person, taking into account the complicated facts and law involved, it has been held that the workman is entitled to have the assistance of a legal practitioner.
44.In the judgment in GHATGE PATIL TRANSPORT PVT. LTD., VS. B.K.ETALE AND OTHERS [1984 (II) LLJ 121], in para 6, a Division Bench of the Bombay High Court has held as follows:
"6............ As held by the Supreme Court in the latest case i.e. The Board of Trustees of the Port of Bombay V. Dilipkumar Nadkarni (Supra), apart from the provisions of laws, it is one of the basic principles of natural justice that the inquiry should be fair and impartial. Even if there is no provision in the Standing Order or in law, wherein an inquiry before the domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated.........."
45.In the judgment in RAM NARESH TRIPATI VS. S.D.RANE AND OTHERS [1992 (II) LLJ 519], the Bombay High Court held that as per item 1(f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, not permitting the Office Bearer of a Trade Union to which a workman is a member, amounts to violation of principles of natural justice. Item 1(f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 states that it is unfair labour practice on the part of an employer to discharge or dismiss an employee in utter disregard of the principles of natural justice in the conduct of domestic enquiry.
46.Now the aforesaid provisions in the IV Schedule of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 relating to unfair labour practices is incorporated in the Fifth Schedule of the Industrial Disputes Act. Clause 5(f) of the Fifth Schedule of Industrial Disputes Act is the replica of clause 1(f) of IV Schedule of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Clause 5(f) of the Fifth Schedule of the Industrial Disputes Act states that it is an unfair labour practice, if a workman is discharged or dismissed in utter disregard of the principles of natural justice in the conduct of domestic enquiry.
47.The Honourable Apex Court in its judgment in COLOUR-CHEM LTD., VS. A.L.ALASPURKAR AND OTHERS [1998 (3) SCC 192] held that the provisions of the Fifth Schedule of the Industrial Disputes Act are replica of unfair labour practices as defined under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. In this regard, the relevant passage from para 12 of the said judgment is extracted hereunder:
"12............The present Act tried to codify unfair labour practices on the part of the employer by enacting the Act in 1972 and even the Industrial Disputes Act being the Central Act also followed the Maharashtra Act and taking a leaf from the book of the Maharashtra Legislature, Parliament introduced the concept of unfair labour practices by inserting Chapter V-C by Act 46 of 1982 w.e.f. 21-8-1984. Sections 25-T and 25-U of the Industrial Disputes Act deal with Prohibition of unfair labour practice and Penalty for committing unfair labour practices respectively. The term unfair labour practice was defined by the Industrial Disputes Act by inserting Section 2(ra) with effect from the very same date, i.e., 21-8-1984 by the very same Act, i.e., Act 46 of 1982 to mean, any of the practices specified in the Fifth Schedule . The Fifth Schedule of the Industrial Disputes Act, which saw the light of day pursuant to the very same Amending Act, deals with unfair labour practices which are a mirror image and a replica of the unfair labour practices contemplated and codified by the present Maharashtra Act. But apart from these subsequent statutory provisions which tried to codify unfair labour practices on the part of the employers, the basic concept of victimisation as laid down by this Court in Hind Construction case1 holds the field and is not whittled down by any subsequent statutory enactments. Not only is it not given a go-by but it is reiterated by the present Act by enacting clause (a) of Item 1 of Schedule IV of the Act meaning thereby any discharge or dismissal of an employee by way of victimisation would be unfair labour practice."
48.Under such circumstances, I am of the view that non permitting the office bearer of a trade union to which the workman is a Member in the domestic enquiry, amounts to violation of principles of natural justice and amounts to unfair labour practices as per clause 5(f) of the Fifth Schedule of the Industrial Disputes Act, in view of the judgment of the Honourable Apex Court in Colour-Chem case (cited supra).
49.In the present case, the workmen are in a better footing and that they should have been permitted to have the assistance of the office bearer of the Trade Union in the domestic enquiry, irrespective of the fact whether the office bearer is an advocate or not, when the writ petitioner was represented by a legally trained mind in the domestic enquiry. Thus, I am inclined to confirm the order of the first respondent that the enquiry was not held fairly by the writ petitioner. The order of the first respondent could be sustained on yet another ground also, that is, in my view, denying the workmen to examine Mr.Dhanapalan, an office bearer of the Trade Union as a witness in the domestic enquiry amounts to denial of opportunity and in violation of principles of natural justice. The reason for not permitting Mr.Dhanapalan to be examined as workmen witness was that he was not an eye-witness to the incident. But the letter written by Mr.Dhanapalan was heavily relied on by the Enquiry Officer to hold the charges proved.
50.Unfair labour practice is codified by the Parliament by Act 46 of 1982. The term unfair labour practice was defined by the Industrial Disputes Act, by inserting Section 2(ra), with effect from 21.08.1984, by the Act 46 of 1982. As per the definition, unfair labour practices means any of the practices specified in the Fifth Schedule of the Industrial Disputes Act. As stated above, Clause 5(f) of the Fifth Schedule of the Industrial Disputes Act states that to discharge or dismiss the workman in utter disregard of principles of natural justice in the conduct of domestic enquiry or undue est is a unfair labour practice. After codification of the unfair labour practices in the Industrial Disputes Act, following the Maharashtra Act, as stated above, it is incumbent on the employer to permit the assistance of an office bearer of a Trade Union in the domestic enquiry, to which the workman is a member, if the workman so desires, otherwise, the conduct of the employer amounts to unfair labour practice and the said action amounts to disregarding principles of natural justice as per the codification of unfair labour practices, more particularly, in the light of the Fifth Schedule of the Industrial Disputes Act and in the light of the judgment of the Bombay High Court in Ram Naresh Tripati's case (cited supra) and the judgment of the Honourable Apex Court in Colour Chem's case (cited supra).
51.Therefore, even if the certified Standing Orders / Model Standing Orders do not provide for the assistance of an office bearer of a Trade Union in the domestic enquiry, the employer is bound to provide assistance of an office bearer of a Trade Union in the domestic enquiry, to which the workman belongs to, in view of the codification of unfair labour practices under the Industrial Disputes Act and in particular, clause 5(f) of the Fifth Schedule of the Industrial Disputes Act.
52.At this juncture, it is relevant to take note of the fact that while prescribing Model Standing Orders under the Industrial Employment (Standing Orders) Act and the Rules framed thereunder, the Central Government being the appropriate Government has provided in rule 14 (4) (ba) of the Industrial Employment (Standing Orders) Central Rules 1946, for the assistance of an office bearer of a Trade Union in the domestic enquiries. In this regard, rule 14(4)(ba) of the Industrial Employment (Standing Orders) Central Rules 1946, is extracted hereunder:
"In the inquiry, the workman shall be entitled to appear in person or to be represented by an office bearer of a trade union of which he is a member."
53.It is also relevant to take note of the observations made by this Court in S.Muthuraman's case (cited supra) that it is eminently desirable that a delinquent workman should be permitted to have the assistance of the office bearer of the Trade Union, to which he is a member. The same is extracted in para 32 of this judgment. The said judgment was rendered even without taking note of Fifth Schedule of the Industrial Disputes Act.
54.As rightly contended by the learned counsel for the workmen, taking into account the Scheme of the Industrial Disputes Act, the Trade Unions Act enabling outsiders as office bearers of the Trade union under Section 22 of the Trade Unions Act 1926 and the Scheme of the Industrial Employment (Standing Orders) Act, the workman is entitled to have the assistance of the office bearer of the Trade Union in the domestic enquiry.
55.The Scheme of the Industrial Disputes Act provides utmost importance to the Trade Unions. In fact, it contemplates the industrial dispute under Section 2(K) of the Act, being the dispute raised by the body of workmen, namely Trade Union. The Act originally enacted did not provide for individual workman to raise an industrial dispute even in the case of non-employment of an individual workman. Section 2-A of the Industrial Disputes Act making dispute relating to dismissal / termination of individual as deeming industrial dispute, was introduced at a later point of time. The Act provides for resolving disputes by way of settlement or adjudication. In both the cases, Trade Unions assume the most important part. The Act recognizes the settlement being signed only by the Trade Union in the case of conditions of service of workman. The Act contemplates collective bargaining. In fact, Section 36 of the Act provides right of Trade Union to represent in the conciliation proceedings and before the Labour Courts / Industrial Tribunals. Whenever the employer proposes to bring change in the conditions of service, Section 9-A of the Industrial Disputes Act read with the Rules framed thereunder contemplates providing of notice to the Union. Whenever the workmen go on strike, the Trade Union should issue notice as per the conditions of service and in the case of public utility service, it is a must for issuing notice on strike by the Unions. Section 33 of the Act provides protection to the office bearer of the Trade Union from being victimised by the employer, while disputes are pending adjudication or conciliation. Thus, the Scheme of the Act provides a pivotal role for Trade Unions.
56.In 1984, as stated above, unfair labour practice is defined and certain practices of the Trade Unions are now codified as unfair labour practices, while certain practices of employers are codified as unfair labour practices. The Act prohibits unfair labour practices being committed by employer or Trade Union. Thus, the Scheme of the Industrial Disputes Act and more particularly, after codification of unfair labour practices and in particular, clause 5(f) of Fifth Schedule of the Industrial Disputes Act, it is incumbent on the employer to provide the assistance of an office bearer of the Trade Union in the domestic enquiry to which the workman is a member. Therefore, the Central Government has made it as conditions of service by incorporating the same in rule 14(4)(ba) in the Model Standing Orders framed by them, as stated above. It is relevant that Section 3 of the Standing Orders Act read with Section 5 make it mandatory that when the employer submits draft Standing Orders for certification, the Certifying Officer shall forward a copy thereof to the Trade Unions and to hear the Trade Unions in the certification proceedings. Thus, the Trade Union is given a right to be heard, while framing the conditions of service of the workmen. While submitting draft standing orders, Section 3 of the Standing Orders Act contemplates that the draft standing orders shall be in conformity with the Model Standing Orders. Section 4 of the Act makes it clear that it is the duty of the Certifying Officer to adjudicate on reasonableness of the provisions of the Standing Orders. Hence, while certifying any standing orders, the Certifying Officer, taking into account the above principles, should ensure that the workman is given assistance by the office bearer of the Trade Union in the domestic enquiry, to which the workman is a member.
57.Therefore, I am of the considered opinion that the Government of Tamil Nadu also should make a provision in the Model Standing Orders, as has been made by the Central Government in the Model Standing Orders framed by them in rule 14(4)(ba) of the Industrial Employment (Standing Orders) Central Rules 1946, taking into account the Scheme of the Industrial Disputes Act, the Trade Unions Act and the Standing Orders Act and more particularly, the codification of unfair labour practices in the year 1984 in the Industrial Disputes Act, as stated above.
58.With these observations, all these writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
59.The Registry is directed to circulate this judgment to the Secretary to Government, Labour and Employment Department, Government of Tamil Nadu, for being circulated to the Certifying Officers under the Standing Orders Act and for incorporating necessary provision in the Model Standing Orders as per Rule 14(4)(ba) of the Industrial Employment (Standing Orders) Central Rules 1946.
TK
Note : The Registry is directed to return the original file
under proper acknowledgment.
To
The Presiding Officer
Principal Labour
Chennai
==============================================================================
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12 / 04 / 2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.NOS.19001 TO 19004 OF 2009
AND CONNECTED MISCELLANEOUS PETITIONS
The Management of
M/s. Chidambaram Shipcare Pvt. Ltd.,
No.38, Second Line Beach,
First Floor, Chennai 600 001.
Rep. by Managing Director ... Petitioner in all WPs'
Versus
1.The Presiding Officer
Principal Labour
Chennai. ... 1st Respondent
in all WPs'
2.M.Baskar ... 2nd Respondent
in W.P.No.19001 / 2009
3.R.Yourey ... 2nd Respondent
in W.P.No.19002 / 2009
4.M.Murray ... 2nd Respondent
in W.P.No.19003 / 2009
5.K.Munusamy ... 2nd Respondent
in W.P.No.19004 / 2009
PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorari, calling for the records connected with A.P.Nos.1 of 2007, 2 of 2007, 3 of 2007 and 4 of 2007 respectively, in I.D.No.587 of 1995 on the file of the 1st respondent Principal Labour Court, Chennai and to quash the common order dated 30.06.2009 made therein.
For Petitioner : Mr.Sanjay Mohan
for M/s.Ramasubramaniam & Associates
For Respondent-2
in all WPs' : Mr.K.V.Dhanapalan
for M/s.Fennwalter Association
C O M M O N O R D E R
The writ petitioner is a Shipping Industry. The second respondent in each of the writ petition was the workman employed by the writ petitioner. According to the workmen, there were about 110 permanent workers including staff were employed by the writ petitioner. The Socialist Workers Union (Shortly "the Union") is the only Trade Union functioning in the writ petitioner company and all the permanent workmen were its Members.
2.According to the workmen, the writ petitioner failed to resolve the dispute relating to revision of wages and other service conditions forcing the Union to take up the matter before the Conciliation Officer under the Industrial Disputes Act (Shortly "the Act"). The conciliation ended in failure resulting in the Government passing an order referring the industrial dispute relating to their charter of demands for adjudication by the first respondent Labour Court. The first respondent Labour Court took it on file as I.D.No.587 of 1995. Ever since the dispute was pending, the writ petitioner started victimising the workers for their legitimate trade union activities. 10 workmen were not made permanent though they put in long years of service. Hence, the Union raised a dispute regarding their permanency and the industrial dispute relating to the permanency is pending in I.D.No.472 of 1998 before the first respondent.
3.In 2002, the writ petitioner imposed a partial lay off to all the workers and the Union raised an industrial dispute questioning the lay off and failure report dated 15.12.2003 was submitted as the conciliation ended in failure. In the meantime, 19 permanent workers were terminated on the ground that Chidambaram Ship Care was closed. According to the workmen, the Management took a dubious stand that there are two industries namely, Chidambaram Ship Care and Chidambaram Ship Care Pvt. Ltd., and those establishments are different entities. It was a malafide act to victimise the workmen.
4.According to the workmen, they were not allowed to report duty on 06.02.2004 and the workmen sent telegram to the Management about the same. The Management put up a notice on 06.02.2004 stating that the workmen indulged in strike. The Union also sent a letter dated 11.02.2004 to the writ petitioner complaining unfair labour practice and illegal lay off.
5.The Management sent a letter dated 14.02.2004 to the individual workers complaining that the workmen were on strike. In the said letter, it is also admitted that the Management imposed lay off. The Management sent another letter to the workers on 18.02.2004 stating that they have suspended the operations carried on by Chidambaram Ship Care from 09.02.2004. According to the Union, the Management was still carrying on their business with Casual Labourers and the alleged suspension of operation is false.
6.The Union wrote letters dated 16.02.2004, 19.02.2004 and 23.02.2004 to the Labour Department to initiate action against the writ petitioner for committing unfair labour practice. While so, according to the Union, the writ petitioner sought to remove the machineries clandestinely on 26.02.2004 and they apprehended insecurity to their employment and they protested for removing the machineries.
7.On the other hand, it was the claim of the writ petitioner that the respondent workmen and others prevented the lorry bearing registration No.TN01-J-3124 from getting it loaded with the materials and threatened, intimidated and abused the loading workmen in filthy language and further, they obstructed the lorry from proceeding further to go out of the work spot.
8.The alleged incident on 26.02.2004 became the subject matter of charge memo dated 28.02.2004 issued to five workmen, including the four contesting respondents involved in the batch of writ petitions. The allegation made therein was that they prevented the loadmen from loading the materials in the lorry and they abused and intimidated the loadmen and that they prevented the lorry from going outside the factory premises. They committed misconduct under Clause 16 (j) of the Model Standing Orders.
9.The workmen gave explanation denying the charges. Not satisfied with the explanation, a common enquiry was conducted by an outsider. In the enquiry, three witnesses were examined on the side of the Management and five witnesses were examined on the side of the workmen. Documents Exs. M1 to M7 were marked on the side of the Management and Exs.W1 to W17 were marked on the side of the workmen.
10.The Enquiry Officer submitted his report dated 25.08.2004 holding that the charges were established. Based on his findings, the respondent workmen herein were dismissed from service by an order dated 20.10.2004. However, proceeding was dropped as against one workman by name Mr.A.Raju stating that he reached the age of superannuation during the pendency of the disciplinary proceedings. Along with the dismissal order, the workmen were given one month wages in compliance with Section 33(2)(b) of the Act.
11.Since I.D.No.587 of 1995 was pending before the first respondent, the writ petitioner filed applications in A.Nos.1 to 4 of 2007 respectively under Section 33(2)(b) of the Act seeking approval of the dismissal order. The respondent workmen filed counter statement in the approval applications questioning the validity of the enquiry. It was their case that the enquiry was conducted in violation of principles of natural justice. They pleaded that though the Presenting Officer of the Management was a Law Graduate, who was legally trained, the workmen were not permitted to have the assistance of the Officer Bearer of the Union Mr.Dhanapalan, on the ground that he was a practicing Advocate. It was their further case that the Enquiry Officer refused permission to examine Mr.Dhanapalan as a witness in the enquiry on behalf of the workmen. Hence, the enquiry was conducted in violation of principles of natural justice. It was also pleaded that the dismissal was not in accordance with the Model Standing Orders, as the past record was not taken into account as contemplated under the Model Standing Orders while dismissing them from service and hence, the dismissal orders were passed in contravention of Section 33(2)(b) of the Act. It was their further case that the findings of the Enquiry Officer were perverse and that the action of the writ petitioner amounts to victimisation and the writ petitioner committed unfair labour practices. Before the first respondent, both the parties did not let in any oral evidence and only documents Exs.P1 to P51 were marked on the side of the writ petitioner.
12.After hearing both sides, the first respondent passed the common order dated 30.06.2009 in A.Nos.1 to 4 of 2007 in I.D.No.587 of 1995 rejecting the approval applications on the ground that enquiry was not conducted fairly. The approval applications were also rejected on other grounds namely the findings of the Enquiry Officer were perverse and that the writ petitioner was guilty of victimisation and also committed unfair labour practices. Challenging the same, the petitioner has filed the present writ petitions.
13.Heard the submissions made on either side.
14.The learned counsel for the petitioner submitted that there is no certified Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946 and the Model Standing Orders prescribed under the Industrial Employment (Standing Orders) Act, 1946 governed the conditions of service of the workmen employed by the writ petitioner. The Model Standing Orders do not provide for the assistance of a Lawyer and since the Union leader, whose assistance was sought by the workmen, was a practicing Lawyer, the workmen are not entitled to have the assistance of a Lawyer under the garb of a Trade Union leader. The learned counsel for the petitioner also submitted that the findings of the first respondent as to victimisation and perversity of the findings of the Enquiry Officer, have no basis. He made elaborate submissions on the merits (facts) of the case.
15.The learned counsel for the petitioner relied on the following decisions in support of his contention that the workmen are not entitled to have the assistance of a Trade Union leader.
(i)Judgment of the Honourable Apex Court in BIECCO LAWRIE LTD., VS. STATE OF WEST BENGAL [2009 (10) SCALE 334]
(ii)Division Bench judgment of this Court in STATE BANK OF INDIA REP. BY THE ASSISTANT GENERAL MANAGER VS. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL [2007(2)LLJ 968].
(iii)Judgment of this Court in S.MUTHURAMAN VS. THE PRESIDING OFFICER, LABOUR COURT AND THE MANAGEMENT OF SREE NITHYAKALYANI TEXTILES LTD. [2003 (III) LLJ 52]
(iv)Judgment of the Honourable Apex Court in D.G.RAILWAY PROTECTION FORCE AND OTHERS VS. K.RAGHURAM BABU [2008 (4) SCC 406]
(v)Judgment of this Court in S.SINGARAVELU VS. GENERAL MANAGER, SOUTHERN RAILWAY in W.P.No.13196 of 2001 (decided on 13.07.2007)
(vi)Judgment of the Honourable Apex Court in BROOKE BOND INDIA (PRIVATE) LTD. VS. SUBBA RAMAN [1961 (II) LLJ 417]
(vii)Judgment of the Honourable Apex Court in EMPLOYERS MANAGEMENT WEST BOKARO COLLIERY OF TISCO LTD. VS. CONCERNED WORKMAN, RAM PRAVESH SINGH [2008 (3) SCC 729]
(viii)Judgment of the Honourable Apex Court in SYNDICATE BANK VS. VENKATESH GURURAO KURATI [2006 (3) SCC 150]
(ix)Judgment of the Honourable Apex Court in HARINARAYAN SRIVASTAV VS.UNITED COMMERCIAL BANK [1997 (4) SCC 384]
(x)Judgment of the Honourable Apex Court in BHARAT IRON WORKS VS. BHAGUBHAI BALUBHAI PATEL [1976 (1) SCC 518]
The learned counsel for the petitioner also relied on some judgments in support of his contention that the first respondent exceeded its jurisdiction, while dealing with the findings of the Enquiry Officer and as to its findings on victimisation.
16.On the other hand, the learned counsel for the workmen submitted that there is no infirmity in the findings of the first respondent that the enquiry was not conducted fairly and the enquiry was conducted in violation of principles of natural justice. The learned counsel took me through the enquiry proceedings and submitted that the Presenting Officer was a Man of Law and therefore, equal opportunity requires that the workmen should also be permitted to have the assistance of a Trade Union leader or an Advocate of their choice. The learned counsel further submitted that there is no prohibition in the Model Standing Orders to have the assistance of a Trade Union leader or an Advocate. According to him, the Model Standing Orders is silent on the assistance to workmen in the domestic enquiry. It was submitted that the Model Standing Orders is also silent as to the appointment of Presenting Officer by the writ petitioner in the domestic enquiry to represent the case of the writ petitioner. Since they travelled beyond the Model Standing Orders and had the benefit of a Presenting Officer, that too a Law Graduate, the workmen are also entitled to have the assistance of a Trade Union Leader or a Lawyer.
17.The learned counsel for the workmen submitted that when the Presenting Officer of the writ petitioner Management was a legally trained mind, even if the Model Standing Orders prohibit assistance of Trade Union leader or an Advocate, the workmen are also entitled to have the assistance of a Trade Union leader or an Advocate. It was further submitted that the Model Standing Orders is silent as to the appointment of an "outsider" as the Enquiry Officer and there is no provision providing for an outsider as an Enquiry Officer. If the writ petitioner had chosen to appoint an outsider as an Enquiry Officer and also a Presenting Officer with legally trained mind, when there is no provision in the Model Standing Orders, the same yardstick should be applied in the case of workmen by permitting them to have the assistance of the Office bearer of the Trade Union. The learned counsel further submitted that the findings of the first respondent as to the perversity of the findings of the Enquiry Officer does not suffer from any infirmity. It was also submitted that it is a clear case of victimisation for trade union activities as almost all the work force were wiped out during the pendency of the industrial dispute in I.D.No.587 of 1995 claiming increase in wages and improvement in the conditions of service.
18.The learned counsel for the workmen submitted that taking into account the scheme of the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 and the provisions of the Industrial Employment (Standing Orders) Act, 1946, the workmen have absolute right to have the assistance of an Office Bearer of a Trade Union in domestic enquiry.
19.The learned counsel for the workmen relied on the following judgments in support of his contention:
i)Judgment of the Honourable Apex Court in CHAIRMAN AND MANAGING DIRECTOR, HINDUSTAN TELEPRINTERS LTD., VS. M.RAJAN ISAAC [2005 (2) LLN 853]
ii)Judgment of the Honourable Apex Court in THE BOARD OF TRUSTEES OF THE PORT OF BOMBAY VS. DILIPKUMAR RAGHAVENDRANATH NADKARNI [1983 (1) LLJ 1]
iii)Judgment of this Court in K.KABALI VS. THE ASSISTANT SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY [1999 (1) CTC 450]
iv)Division Bench judgment of the Kerala High Court in UNION OF INDIA VS. KARUNAKARAN NAIR [1986 (1) LLJ 124]
v)Judgment of the Delhi High Court in DELHI BOTTLING CO. PVT. LTD., VS. A.N.TRIPATHI [1994 (1) LLJ 1207]
vi)Division Bench judgment of the Karnataka High Court in G.V.ASWATHANARAYANA VS. CENTRAL BANK OF INDIA [1993 (1) LLN 689]
vii)Division Bench judgment of the Karnataka High Court in A.R.KAVI VS. KARNATAKA AGRO INDUSTRIES CORPORATION [1993 (1) LLN 691]
viii)Judgment of the Bombay High Court in RAM NARESH TRIPATI VS. S.D.RANE [1992 (II) LLJ 519]
ix)Division Bench judgment of the Bombay High Court in GHATGE PATIL TRANSPORT PVT. LTD. VS. B.K.ETALE [1984 (II) LLJ 121]
x)Division Bench judgment of the Bombay High Court in VENKATRAMAN SAMBAMURTHY VS. UNION OF INDIA [1986 (II) LLJ 62]
xi)Judgment of the Honourable Apex Court in J.K.AGGARWAL VS. HARYANA SEEDS DEVELOPMENT CORPORATION LTD. [1991 (II) LLJ 412]
The learned counsel also relied on some other judgments on merits to sustain the order of the first respondent on merits and victimisation.
20.I have considered the submissions made on either side and perused the entire materials available on record.
21.The issue arises for consideration in all these writ petitions is whether the employer conducted a fair enquiry complying with the principles of natural justice and whether the workmen were given equal opportunity in defending them in the enquiry.
22.The workmen have categorically stated in their counter filed before the first respondent that the enquiry was not held fairly and properly and that they were not given reasonable opportunity. It was further pleaded that the enquiry was conducted in violation of principles of natural justice. On seeing the counter statement, the writ petitioner did not choose to file an application seeking permission to let in evidence, in the event, the first respondent comes to the conclusion that the enquiry was not fairly conducted. In those circumstances, the workmen would succeed, if the preliminary point as to the unfairness of the enquiry, is held in their favour and there is no need to go into the merits of the case and other issues.
23.In this regard, it is relevant to refer the judgment of the Honourable Apex Court in Shambhu Nath Goyal vS. Bank of Baroda [1983 (4) SCC 491] wherein, it has been held that in an application filed by the employer under Section 33(2)(b) of the Act seeking approval of dismissal, if the workman questioned the fairness of the domestic enquiry, that preceded the order of dismissal, in the counter statement filed opposing the approval application and if the employer failed to file proper application on seeing the counter of workman, seeking opportunity to let in evidence to substantiate the dismissal order, if the finding on the issue as to fairness of the enquiry was held against them, the Labour Court / Tribunal could straight away reject the approval application on rendering a finding on the issue relating to fairness of the enquiry against the employer, without going into merits and other aspects of the matter. This judgment was later approved by the Constitution Bench of the Honourable Apex Court in KARNATAKA STATE ROAD TRANSPORT CORPN. VS. LAKSHMIDEVAMMA (SMT) AND ANOTHER [2001 (5) SCC 433]. Therefore, if the first respondent is correct in holding that the enquiry was not fairly conducted, I need not go into merits of the case and the employer must fail, as the learned counsel for the writ petitioner fairly submitted that they did not file any application seeking opportunity to let in evidence.
24.The first respondent held that since the workmen were not permitted to have the assistance of the office bearer of their Union, who was a practicing advocate, when the writ petitioner had the benefit of law graduate to represent their case in the domestic enquiry, the enquiry was not fairly conducted. Now, the correctness of the aforesaid conclusion of the first respondent is the issue that has to be answered.
25.The following passage from the proceedings of the Enquiry Officer is extracted hereunder:
VERNACULAR (TAMIL) PORTION DELETED
The above passage makes it very clear that the Enquiry Officer has recorded that the Presenting Officer is a Man of Law. However, it is held that the workmen could not bring a Lawyer under the garb of a Trade Union leader, while the Presenting Officer was not a practicing advocate.
26.The aforesaid action of the Enquiry Officer based on which the dismissal order was passed, was not approved by the first respondent and the first respondent held that the enquiry was not a fair enquiry, since the workmen, who were pitted against a legally trained mind in the domestic enquiry, were not permitted to have the assistance of the office bearer of their Union. In this regard, paras 10 to 12 of the order of the first respondent, which is impugned in the present writ petitions, are extracted hereunder:
"10. While the petitioner/management would put forth a plea that in the conduct of the enquiry, principles of natural justice have been followed, that the enquiry finding was not perverse, that there was no element of victimisation, that other procedural requirements such as payment of one month's salary after passing of the order of dismissal were met, that the requirement that an approval petition has got to be filed simultaneously has also been satisfied. The respondents/workmen would contend that the domestic enquiry itself is vitiated on the ground that they were refused assistance of an advocate in the conduct of the domestic enquiry even though the management representative S.Govindarajulu was himself a law graduate, that the trade union leader of the respondents was not permitted to participate in the domestic enquiry, that the Enquiry Officer did not permit Thiru. Dhanapalan a trade union leader-cum-advocate to examine himself as a witness.
11.As to the request of the workmen to avail the assistance of an advocate in the domestic enquiry, reliance is placed on 2005(2)L.L.N.853(Chairman and Managing Director, Hindustan Teleprinters Limited, Chennai and M.Rajan Isaac) a Division Bench judgment of our High Court. It has been strikingly observed in the said judgment that ordinarily the principles of natural justice do not postulate a right to be represented or assisted by a lawyer in the departmental proceedings. But there is an exception and if the delinquent officer or the workman as the case may be is pitted against a legally trained person in the departmental enquiry and the delinquent officer or the workman is not that much familiar with the legal procedures involved in the departmental enquiry, justice would require that the officer or workman who has no legal background is represented through a lawyer. It has further been observed that in the absence of such expertise by the officer, the denial of assistance of a legally trained person would render the disciplinary proceedings vitiated. The principle in the said decision has already been dealt with elaborated and laid down in (1) 1986 1 LLJ 124 - Kerala High Court (Union of India and Karunakaran Nair) (2) 1986 II L.L.J 62 Bombay High Court (Venkatraman Sambamurthy and Union of India and another) (3) 1991 2 LLJ 412-Supreme Court (J.K. Aggarwal and Haryana Seeds Development Corpn. Ltd and others) (4) 1993 I LLN 689 (Karnataka High Court (G.V.Aswathanarayana and Central Bank of India and others) (5) 1999 I CTC 450 Madras High Court. A close reading of the postulates evolved by the superior courts would only show that when a workman is pitted against a legally trained person, it is more in the nature of fight between two unequals and law disapproves such a placement of the worker as against the management represented by a legally trained person. A pertinent reference may be made at this juncture to a decision of Hon'ble Supreme Court of India reported in 2008(3) L.L.N.60 (SC). It has been held that there is no vested right to claim assistance of a counsel or any other person and when the rules permit only restricted or controlled assistance, no principle of justice is isolated. May be that denial of right to claim assistance of a counsel may not be violative of the principles of natural justice, but in the event of the workman being confronted by the management with a legally trained person, per force, the workman has got to be extended the facility of a lawyer or legally trained person so that ends of justice are better served. In the case at hand the grievance of the respondents is that the assistance of a lawyer has been denied to them, when the representative of the management was a law graduate in his own right and this circumstance would vitiate the enquiry. The Management representative by name Govindarajulu being a law graduate, has necessarily to be credited with knowledge of law and procedure. It may be that he might be in the H.R.D. Section of the petitioner management, but still having been possessed of a degree in law. It would not be in the fitness of things to treat him not as a legally trained person, notwithstanding the fact that he has not been enrolled as an advocate. If so, the refusal on the part of the Enquiry Officer in affording an opportunity to the respondents to engage a lawyer of their choice so as to assist them in the enquiry, in the context of the management being represented by a legally trained person could amount to disregard of principles of natural justice, for after all to presume a law graduate as not one legally trained would be an anathema.
12.There are no standing orders intended to be applicable to the workmen. If so, the model standing orders will have to be taken into account. The model standing orders do not provide for extending the facility of a lawyer. But the principles that emerge from the decisions of the superior courts would lay down candidly the principles governing the conduct of domestic enquiries and it would be quite clear that when the management is represented by a legally trained person, the worker has to be extended the facility of a legally trained person. Obviously, in this case, the worker having been refused permission in this behalf, I am of the view that this state of affairs would only vitiate the enquiry."
27.The first respondent Labour Court categorically held that by refusing permission of the office bearer of the Trade Union, the workmen were denied equal opportunity, when they were pitted against a Presenting Officer, who was a legally trained person.
28.It is not in dispute that the request of the workmen to have the assistance of an office bearer of the Trade Union was declined on the ground that the office bearer, whose assistance was sought, is a practicing advocate. It is also not in dispute that the writ petitioner/Management was represented in the enquiry by a Presenting Officer, who was a Man of law. Further, the Presenting Officer worked in various establishments as Manager (HRD & IR) for nine years and had been working as Manager (HRD & IR) in the writ petitioner company for the past five years. As a Manager dealing with Human Resources and Industrial Relations, he should have acquired rich experience in dealing with disciplinary matters. Being a Law Graduate with such vast experience dealing with industrial relations, he is certainly a legally trained mind and therefore, workmen also should be provided the assistance of their Union leader, even if the leader is a practicing advocate.
29.The various judgments relied on by the learned counsel for the petitioner in support of his contention that the workmen are not entitled to have the assistance of the Office bearers of the Trade Union, are not applicable to the facts of this case.
30.In the judgment of the Honourable Apex Court in Biecco Lawrie Ltd. Vs. State of West Bengal [2009 (10) SCALE 334], the dispute relating to non-employment of a workman was referred to adjudication by Industrial Tribunal in West Bengal. The Tribunal held that the domestic enquiry was conducted in violation of principles of natural justice. After holding so, the employer let in evidence and the workman let in contra evidence. The aforesaid facts are culled out from the following passage in para 5 of the judgment.
"5..... the dispute was referred under Section 7A of the Industrial Disputes Act on 2nd of April 1987 by the Labour Department, Government of West Bengal to the Vth Industrial Tribunal, West Bengal for adjudication. Both the parties filed their written statements presenting their cases before the Tribunal and on 9th of October, 1990 the Tribunal held that the inquiry conducted by Mr.P.K.Mukherjee, the Inquiry Officer, was in violation of the principles of natural justice and accordingly the matter was heard afresh on merits. The witnesses of the appellants were examined and cross examined. The respondent was also examined and cross examined....."
Initially, the Tribunal held against the workman both on the fairness of the enquiry and also on merits, based on the fresh evidence let in before the Tribunal. The workman took up the matter before the High Court and the matter was remanded to the Tribunal. On remand, the Tribunal held in favour of the workman. The award of the Tribunal was challenged by the employer. The learned single Judge confirmed the award and the Division Bench also confirmed the order of the learned single Judge. The matter was taken to the Honourable Apex Court and the Apex Court reversed all the judgments and restored the earlier findings of the Tribunal. In my view, the said judgment is of no use, since the enquiry was set aside and parties let in fresh evidence before the Tribunal.
31.The Division Bench judgment of this Court in STATE BANK OF INDIA REP. BY THE ASSISTANT GENERAL MANAGER VS. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL [2007 (2) LLJ 968] relied on by the learned counsel for the petitioner relates to the dismissal of an employee of the Bank who was charged for misappropriation. The Tribunal held that the Enquiry Officer and the Presenting Officer were not legally trained persons and therefore, the workman could not insist for the assistance of a Lawyer. The Tribunal recorded a finding that the enquiry proceedings was fair and proper. However, as the enquiry was conducted exparte, in order to give a fair opportunity to the workman, the Tribunal held that the findings of the enquiry officer is vitiated. A Division Bench of this Court went into detail and found that the workman was given a lot of opportunities and in spite of the same, he remained exparte and therefore, the Tribunal was not correct in holding that the findings of the exparte enquiry was perverse. In fact, as stated above, the Tribunal held that the enquiry was conducted fairly and properly and that the workman could not insist for the assistance of a Lawyer, since the Bank was not represented by a legally trained mind in the enquiry. Hence, in my view, the said judgment is of no use to the case on hand. However, para 14 of the judgment relies on an another Division Bench judgment of this Court which is in favour of the workman and the same is extracted hereunder:
"14.The other decision cited by the learned counsel for the writ petitioner is 2005 (2) LLJ 610 Chairman and Managing Director, Hindustan Teleprinters Ltd., Chennai v. M.Rajan Isaac, wherein the Division Bench of this Court has held,
12.The general rule is that in the absence of rules an employee has no right to seek for assistance of a lawyer in the departmental enquiry. Ordinarily the principles of natural justice do not postulate a right to be represented or assisted by a lawyer in the departmental proceedings. But there is an exception and the question would be different if the delinquent officer or the workman, as the case may be; is pitted against a legally trained person in the departmental enquiry and the delinquent officer or the workman is not that much familiar with the legal procedures involved in the departmental enquiry. When a presenting officer is stated to be a man of law, justice would require that the officer or workman who has no legal background is represented through a lawyer. Though the quasi-judicial authorities holding domestic enquiries are not governed by strict and technical rules of evidence, yet they are governed by the rule of equity and natural justice and they must act in fairness. This concept is to ensure that there is no failure of justice."
The aforesaid judgment reported in 2005 (2) LCJ 610 was relied on by the first respondent to render its findings.
32.In the judgment of this Court in S.MUTHURAMAN VS. THE PRESIDING OFFICER, LABOUR COURT AND THE MANAGEMENT OF SREE NITHYAKALYANI TEXTILES LTD. [2003 (III) LLJ 52] relied on by the writ petitioner, the workmen were denied the assistance of an Advocate or a Trade Union leader on the ground that the Standing Orders do not provide for the same and that the Management was not represented by a legally trained mind. At this juncture, it is relevant to extract para 8 of the said judgment .
"8.In this case, the management was not represented by legally trained persons. So, the question of ensuring the balancing of the scales by allowing the workmen to have the assistance of legally trained persons did not arise."
However, it has been held in para 14 of the said judgment that that if one of the parties had the benefit of legal assistance, the other party should also have the same benefit. In this regard, para 14 of the said judgment is extracted hereunder, which is in favour of the workmen.
"14.Unless there are compelling reasons, the need to provide legal assistance to one of the parties when the other party had the benefit of such assistance being a fundamental matter, the Courts have held that notwithstanding the absence of a provision for granting such assistance in the standing orders, the larger requirements of fairness mandates that management who want to have the benefit of the assistance of such legally trained persons must recognise a similar right in the delinquent workmen against whose conduct the enquiry is being held. Where, however, in the domestic enquiry, the management merely participate through its own officers who are not legally trained, workmen cannot assert a right to be represented through another, unless the standing orders provide for the same, or the Enquiry Officer permits such assistance."
In para 13 of the said judgment, the Court also felt that it is desirable that the delinquent workman should be permitted to have the assistance of the office bearer of the Trade Union or its member during the domestic enquiry. However, what is desirable is not always mandated by law. In this regard, para 13 of the said judgment is extracted hereunder:
"13.It is eminently desirable that a delinquent workman be permitted to have the service of a co-worker or, the Office bearer of the trade union of which he is a member, at the domestic enquiry. What is desirable is, however, not always what is mandated by law. Statutory provisions are not to be re-written and requirements which are not part of the statute, read into the same."
This Court also noted in para 9 of the said judgment that the Model Standing Orders framed by the Central Government provides for the assistance of an office bearer of the Trade Union and the same is extracted hereunder:
"9............. Although the model standing orders prescribed under the Central Rules provide for representation of the delinquent workman by an office bearer of a trade union of which that workman is a member, similar provision is not made in the model standing orders under the State Rules."
Thus, the judgments relied on by the writ petitioner, far from helping them, supports the conclusion of the first respondent.
33.In the judgment of the Honourable Apex Court in D.G.RAILWAY PROTECTION FORCE AND OTHERS VS. K.RAGHURAM BABU [2008 (4) SCC 406] relied on by the writ petitioner, it has been held that there is no vested or absolute right to any charge sheeted employee to represent either through a counsel or through any other person, unless the statute or rules provides for such a right. It was not the case where the Department was represented by a legally trained person. Hence, the said judgment is of no use.
34.This Court in the judgment in S.SINGARAVELU VS. GENERAL MANAGER, SOUTHERN RAILWAY in W.P.No.13196 of 2001 (decided on 13.07.2007) has held that the Management was not represented by a Man of Law and the CBI Inspector could not be termed as a legally trained person. In the said context, it was held that the employee was not entitled to have the assistance of a Lawyer. Hence, the said judgment is not applicable to the case on hand. In fact, para 14 of the said judgment is in favour of the workmen, wherein it has been held that when the Management availed the services of the Presenting Officer, who is a legally qualified person, the workmen is entitled to have the assistance of a Lawyer. In this regard, para 14 is extracted hereunder:
"14.In the case of Indian Airlines Corporation vs. N.Sundaram 1992 (II) L.L.N. 811, the Division Bench of this Court while dealing with Indian Airlines Employees Standing Orders (Regulations) Concerning Discipline and Appeals, had to deal with Standing Order 32, which reads as follows:
An employee may be permitted, if he so desires, to have, under his own arrangements, the assistance of a "friend" during the course of the enquiry. Such a "friend" must be an employee of the corporation. No outside representation shall be permitted in any circumstances.
In that case, one Assistant Manager (Personnel) who was a legally qualified and well trained in disciplinary proceedings, was availed by the Management as a Presenting Officer. When the delinquent has requested for representation through a lawyer, that was rejected. It was in those circumstances observed that, "the Corporation did have the services of a legally qualified and trained person, who had considerable experience in the conduct of disciplinary proceedings." The Division Bench has further held that the delinquent therein was in a disadvantageous position while meeting such a Presenting Officer, who was well qualified, and held that the delinquent was entitled for relief. However, on the factual situation in this case, I do not think that the said judgment has any application since the Presenting Officer appointed in the present case is not a legal practitioner or legally qualified person and he was a C.B.I. Inspector."
35.In the judgment of the Honourable Apex Court in BROOKE BOND INDIA (PRIVATE) LTD. VS. SUBBA RAMAN [1961 (II) LLJ 417] relied on by the writ petitioner, the workman remained exparte on the ground that he was was not permitted to have the assistance of an outsider to defend him in the enquiry. It was not the case that the Management was represented by a legally trained mind. Hence, the same is not applicable to the case on hand. In fact, the following passage indicates that had the workman wanted representation from the Trade Union, the Court could have considered differently.
"..... Neither of them apparently wanted to be represented by somebody from the union...."
36.In my view, none of the judgments relied on by the learned counsel for the petitioner laid down that when the employer is represented by a Presenting Officer, who is a Law Graduate, even then the workmen could be denied the assistance of a Lawyer or a Trade Union leader. Just because the Trade Union leader happened to be a practicing advocate, the Enquiry Officer was not correct in rejecting his representation in the enquiry, particularly, when the Presenting Officer is a legally trained person. Hence, I do not find any infirmity in the findings of the first respondent in holding that the enquiry was not conducted fairly.
37.The judgments relied on by the learned counsel for the workmen supports the proposition that whenever the Management is represented by a Man of Law, the workmen should also be permitted to have assistance of an advocate irrespective of the fact whether the the Standing Orders provides for assistance of a Lawyer or not. Those judgments are considered hereunder.
38.In the First Bench judgment of this Court relied on by the learned counsel for the workmen in CHAIRMAN AND MANAGING DIRECTOR, HINDUSTAN TELEPRINTERS LTD. VS. M.RAJAN ISAAC [2005 (2) L.L.N. 853), it has been categorically held that if the workman was pitted against a legally trained person in the domestic enquiry, he is entitled to have the assistance of a legally trained person. In this regard, para 14 of the said judgment is extracted hereunder:
"14.From the above rival stand, it is clear that the averment of the respondent that the presenting officer was a legally trained person was not denied by the appellant, except saying that the respondent was denied the assistance of a legal practitioner as the rules do not provide for the same. The Supreme Court in Mintu Bhakta v. State of West Bengal [(1973) 4 SCC 85], has held that "a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation and therefore the allegation remains unanswered and must consequently be accepted in the absence of any cogent reply". In the absence of specific denial, the claim of the respondent that he was pitted against a legally trained person who is familiar with the procedures of the domestic enquiry including the legal consequences thereof should be accepted. In the absence of such expertise by the officer, the denial of assistance of a legally trained person would render the disciplinary proceedings vitiated...."
39.Likewise, in the judgment of the Honourable Apex Court in THE BOARD OF TRUSTEES OF THE PORT OF BOMBAY VS. DILIPKUMAR RAGHAVENDRANATH NADKARNI AND OTHERS [1983 (I) LLJ 1], the following passage from para 11 supports the order of the first respondent.
"11....... In our view we have reached a stage in our onward march to fair play in action that wherein an enquiry before a Domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. This view has been taken by a learned single Judge and while dismissing the appeal in limine approved by the Division Bench of the High Court commends to us. Therefore, this appeal is liable to be dismissed."
40.This Court followed the aforesaid judgment of the Honourable Apex Court in its judgment in K.KABALI VS. THE ASSISTANT SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY [1999 (1) CTC 450] and held that the enquiry was vitiated, taking note of the fact that the employer was represented by a legally trained person, while the employee was not given a similar opportunity.
41.The Division Bench judgment of the Kerala High Court in UNION OF INDIA VS. KARUNAKARAN NAIR [1986 (1) LLJ 124] held that when a Government employee is pitted against a legally trained mind in the departmental enquiry, he is entitled to have the assistance of a lawyer.
42.The Delhi High Court in its judgment in DELHI BOTTLING CO. PVT. LTD. VS. A.N.TRIPATHI AND OTHERS [1994 (1) LLJ 1207] took note of Rule 14(4)(ba) of the Model Standing Orders framed by the Central Government under the Industrial Employment (Standing Orders) Central Rules, 1946 that provides for assistance of an officer Bearer of the Union and when the same was declined, the Court held that the enquiry was vitiated.
43.In the Division Bench judgment of the Karnataka High Court in G.V.ASWATHANARAYANA VS. CENTRAL BANK OF INDIA [1993 (I) LLN 689], even when the employer was not represented by a legally trained person, taking into account the complicated facts and law involved, it has been held that the workman is entitled to have the assistance of a legal practitioner.
44.In the judgment in GHATGE PATIL TRANSPORT PVT. LTD., VS. B.K.ETALE AND OTHERS [1984 (II) LLJ 121], in para 6, a Division Bench of the Bombay High Court has held as follows:
"6............ As held by the Supreme Court in the latest case i.e. The Board of Trustees of the Port of Bombay V. Dilipkumar Nadkarni (Supra), apart from the provisions of laws, it is one of the basic principles of natural justice that the inquiry should be fair and impartial. Even if there is no provision in the Standing Order or in law, wherein an inquiry before the domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated.........."
45.In the judgment in RAM NARESH TRIPATI VS. S.D.RANE AND OTHERS [1992 (II) LLJ 519], the Bombay High Court held that as per item 1(f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, not permitting the Office Bearer of a Trade Union to which a workman is a member, amounts to violation of principles of natural justice. Item 1(f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 states that it is unfair labour practice on the part of an employer to discharge or dismiss an employee in utter disregard of the principles of natural justice in the conduct of domestic enquiry.
46.Now the aforesaid provisions in the IV Schedule of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 relating to unfair labour practices is incorporated in the Fifth Schedule of the Industrial Disputes Act. Clause 5(f) of the Fifth Schedule of Industrial Disputes Act is the replica of clause 1(f) of IV Schedule of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Clause 5(f) of the Fifth Schedule of the Industrial Disputes Act states that it is an unfair labour practice, if a workman is discharged or dismissed in utter disregard of the principles of natural justice in the conduct of domestic enquiry.
47.The Honourable Apex Court in its judgment in COLOUR-CHEM LTD., VS. A.L.ALASPURKAR AND OTHERS [1998 (3) SCC 192] held that the provisions of the Fifth Schedule of the Industrial Disputes Act are replica of unfair labour practices as defined under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. In this regard, the relevant passage from para 12 of the said judgment is extracted hereunder:
"12............The present Act tried to codify unfair labour practices on the part of the employer by enacting the Act in 1972 and even the Industrial Disputes Act being the Central Act also followed the Maharashtra Act and taking a leaf from the book of the Maharashtra Legislature, Parliament introduced the concept of unfair labour practices by inserting Chapter V-C by Act 46 of 1982 w.e.f. 21-8-1984. Sections 25-T and 25-U of the Industrial Disputes Act deal with Prohibition of unfair labour practice and Penalty for committing unfair labour practices respectively. The term unfair labour practice was defined by the Industrial Disputes Act by inserting Section 2(ra) with effect from the very same date, i.e., 21-8-1984 by the very same Act, i.e., Act 46 of 1982 to mean, any of the practices specified in the Fifth Schedule . The Fifth Schedule of the Industrial Disputes Act, which saw the light of day pursuant to the very same Amending Act, deals with unfair labour practices which are a mirror image and a replica of the unfair labour practices contemplated and codified by the present Maharashtra Act. But apart from these subsequent statutory provisions which tried to codify unfair labour practices on the part of the employers, the basic concept of victimisation as laid down by this Court in Hind Construction case1 holds the field and is not whittled down by any subsequent statutory enactments. Not only is it not given a go-by but it is reiterated by the present Act by enacting clause (a) of Item 1 of Schedule IV of the Act meaning thereby any discharge or dismissal of an employee by way of victimisation would be unfair labour practice."
48.Under such circumstances, I am of the view that non permitting the office bearer of a trade union to which the workman is a Member in the domestic enquiry, amounts to violation of principles of natural justice and amounts to unfair labour practices as per clause 5(f) of the Fifth Schedule of the Industrial Disputes Act, in view of the judgment of the Honourable Apex Court in Colour-Chem case (cited supra).
49.In the present case, the workmen are in a better footing and that they should have been permitted to have the assistance of the office bearer of the Trade Union in the domestic enquiry, irrespective of the fact whether the office bearer is an advocate or not, when the writ petitioner was represented by a legally trained mind in the domestic enquiry. Thus, I am inclined to confirm the order of the first respondent that the enquiry was not held fairly by the writ petitioner. The order of the first respondent could be sustained on yet another ground also, that is, in my view, denying the workmen to examine Mr.Dhanapalan, an office bearer of the Trade Union as a witness in the domestic enquiry amounts to denial of opportunity and in violation of principles of natural justice. The reason for not permitting Mr.Dhanapalan to be examined as workmen witness was that he was not an eye-witness to the incident. But the letter written by Mr.Dhanapalan was heavily relied on by the Enquiry Officer to hold the charges proved.
50.Unfair labour practice is codified by the Parliament by Act 46 of 1982. The term unfair labour practice was defined by the Industrial Disputes Act, by inserting Section 2(ra), with effect from 21.08.1984, by the Act 46 of 1982. As per the definition, unfair labour practices means any of the practices specified in the Fifth Schedule of the Industrial Disputes Act. As stated above, Clause 5(f) of the Fifth Schedule of the Industrial Disputes Act states that to discharge or dismiss the workman in utter disregard of principles of natural justice in the conduct of domestic enquiry or undue est is a unfair labour practice. After codification of the unfair labour practices in the Industrial Disputes Act, following the Maharashtra Act, as stated above, it is incumbent on the employer to permit the assistance of an office bearer of a Trade Union in the domestic enquiry, to which the workman is a member, if the workman so desires, otherwise, the conduct of the employer amounts to unfair labour practice and the said action amounts to disregarding principles of natural justice as per the codification of unfair labour practices, more particularly, in the light of the Fifth Schedule of the Industrial Disputes Act and in the light of the judgment of the Bombay High Court in Ram Naresh Tripati's case (cited supra) and the judgment of the Honourable Apex Court in Colour Chem's case (cited supra).
51.Therefore, even if the certified Standing Orders / Model Standing Orders do not provide for the assistance of an office bearer of a Trade Union in the domestic enquiry, the employer is bound to provide assistance of an office bearer of a Trade Union in the domestic enquiry, to which the workman belongs to, in view of the codification of unfair labour practices under the Industrial Disputes Act and in particular, clause 5(f) of the Fifth Schedule of the Industrial Disputes Act.
52.At this juncture, it is relevant to take note of the fact that while prescribing Model Standing Orders under the Industrial Employment (Standing Orders) Act and the Rules framed thereunder, the Central Government being the appropriate Government has provided in rule 14 (4) (ba) of the Industrial Employment (Standing Orders) Central Rules 1946, for the assistance of an office bearer of a Trade Union in the domestic enquiries. In this regard, rule 14(4)(ba) of the Industrial Employment (Standing Orders) Central Rules 1946, is extracted hereunder:
"In the inquiry, the workman shall be entitled to appear in person or to be represented by an office bearer of a trade union of which he is a member."
53.It is also relevant to take note of the observations made by this Court in S.Muthuraman's case (cited supra) that it is eminently desirable that a delinquent workman should be permitted to have the assistance of the office bearer of the Trade Union, to which he is a member. The same is extracted in para 32 of this judgment. The said judgment was rendered even without taking note of Fifth Schedule of the Industrial Disputes Act.
54.As rightly contended by the learned counsel for the workmen, taking into account the Scheme of the Industrial Disputes Act, the Trade Unions Act enabling outsiders as office bearers of the Trade union under Section 22 of the Trade Unions Act 1926 and the Scheme of the Industrial Employment (Standing Orders) Act, the workman is entitled to have the assistance of the office bearer of the Trade Union in the domestic enquiry.
55.The Scheme of the Industrial Disputes Act provides utmost importance to the Trade Unions. In fact, it contemplates the industrial dispute under Section 2(K) of the Act, being the dispute raised by the body of workmen, namely Trade Union. The Act originally enacted did not provide for individual workman to raise an industrial dispute even in the case of non-employment of an individual workman. Section 2-A of the Industrial Disputes Act making dispute relating to dismissal / termination of individual as deeming industrial dispute, was introduced at a later point of time. The Act provides for resolving disputes by way of settlement or adjudication. In both the cases, Trade Unions assume the most important part. The Act recognizes the settlement being signed only by the Trade Union in the case of conditions of service of workman. The Act contemplates collective bargaining. In fact, Section 36 of the Act provides right of Trade Union to represent in the conciliation proceedings and before the Labour Courts / Industrial Tribunals. Whenever the employer proposes to bring change in the conditions of service, Section 9-A of the Industrial Disputes Act read with the Rules framed thereunder contemplates providing of notice to the Union. Whenever the workmen go on strike, the Trade Union should issue notice as per the conditions of service and in the case of public utility service, it is a must for issuing notice on strike by the Unions. Section 33 of the Act provides protection to the office bearer of the Trade Union from being victimised by the employer, while disputes are pending adjudication or conciliation. Thus, the Scheme of the Act provides a pivotal role for Trade Unions.
56.In 1984, as stated above, unfair labour practice is defined and certain practices of the Trade Unions are now codified as unfair labour practices, while certain practices of employers are codified as unfair labour practices. The Act prohibits unfair labour practices being committed by employer or Trade Union. Thus, the Scheme of the Industrial Disputes Act and more particularly, after codification of unfair labour practices and in particular, clause 5(f) of Fifth Schedule of the Industrial Disputes Act, it is incumbent on the employer to provide the assistance of an office bearer of the Trade Union in the domestic enquiry to which the workman is a member. Therefore, the Central Government has made it as conditions of service by incorporating the same in rule 14(4)(ba) in the Model Standing Orders framed by them, as stated above. It is relevant that Section 3 of the Standing Orders Act read with Section 5 make it mandatory that when the employer submits draft Standing Orders for certification, the Certifying Officer shall forward a copy thereof to the Trade Unions and to hear the Trade Unions in the certification proceedings. Thus, the Trade Union is given a right to be heard, while framing the conditions of service of the workmen. While submitting draft standing orders, Section 3 of the Standing Orders Act contemplates that the draft standing orders shall be in conformity with the Model Standing Orders. Section 4 of the Act makes it clear that it is the duty of the Certifying Officer to adjudicate on reasonableness of the provisions of the Standing Orders. Hence, while certifying any standing orders, the Certifying Officer, taking into account the above principles, should ensure that the workman is given assistance by the office bearer of the Trade Union in the domestic enquiry, to which the workman is a member.
57.Therefore, I am of the considered opinion that the Government of Tamil Nadu also should make a provision in the Model Standing Orders, as has been made by the Central Government in the Model Standing Orders framed by them in rule 14(4)(ba) of the Industrial Employment (Standing Orders) Central Rules 1946, taking into account the Scheme of the Industrial Disputes Act, the Trade Unions Act and the Standing Orders Act and more particularly, the codification of unfair labour practices in the year 1984 in the Industrial Disputes Act, as stated above.
58.With these observations, all these writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
59.The Registry is directed to circulate this judgment to the Secretary to Government, Labour and Employment Department, Government of Tamil Nadu, for being circulated to the Certifying Officers under the Standing Orders Act and for incorporating necessary provision in the Model Standing Orders as per Rule 14(4)(ba) of the Industrial Employment (Standing Orders) Central Rules 1946.
TK
Note : The Registry is directed to return the original file
under proper acknowledgment.
To
The Presiding Officer
Principal Labour
Chennai
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