HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
TUESDAY THIS THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND FOURTEEN
PRESENT
THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION Nos.2124 & 2126 of 2002
WRIT PETITION No.2124 of 2002:
Between: V.Narendra Kumar
. PETITIONER And The Deputy Commissioner of Labour, Visakhapatnam and 2 others
WRIT PETITION No.2126 of 2002:
Between: N.S.Prasad
. RESPONDENTS . PETITIONER And The Deputy Commissioner of Labour, Visakhapatnam and 2 others . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION Nos.2124 & 2126 of 2002
COMMON ORDER:
Since the common issues arise for consideration in both the writ petitions they are disposed of by this common order.
2. WP.No.2124 of 2002 is filed by the workman-V.Narendra Kumar, who is an Assistant Cook. WP.No.2126 of 2002 is filed by the workman-N.S.Prasad, who is a waiter in the 3rd respondent Hotel. Both the petitioners pray to issue a Writ of Mandamus or any appropriate order or direction declaring the action of the 1st respondent in setting aside the order of the 2nd respondent as illegal, arbitrary and violative of principles of natural justice and consequently, direct the 3rd respondent to reinstate the petitioner with continuity of service with back wages and all other attendant benefits together with interest @12% p.a.
3. The petitioner in W.P.No.2124/2002 was appointed on 01.04.1992 on a salary of Rs.750/- per month. At the time of termination, the petitioner was drawing salary of Rs.2,300/- per month. In his service, a domestic enquiry was held against the petitioner on the following misconducts under the certified standing orders of the Company;
Clause 21: Any conduct of a workman which would effect the relationship of the employer and the employee and the discipline of the establishment or the conduct of the business of the establishment shall be considered as a misconduct.
Clause 21(i): Wilful insubordination or disobedience, whether or not in combination with others of any lawful or reasonable order of a superior;
Clause 21(v): Riotous or disorderly behaviour or commission of any act subversive of any discipline or good behaviour in the premises of the establishment or in course of his duties or in the housing colony or club of the company or anywhere outside the establishment’s premises which directly effects the discipline or administration of the establishment or directly linked to the general relationship of the employer and employee or has material bearing on the smooth working of the establishment;
Clause 21 (viii): Wilful damage to work in progress or to any property of the establishment or its customers;
Clause 21 (xiii): Wrongful restraint or wrongful confinement of any office employee or any person connected with the work of the company within the establishment or outside the premises of the establishment or in the housing colony or in the club of the company;
Clause 21 (xviii): Wilful interference, within the premises of the establishment with the work of another workman of of a person authorized by the company to work on its premises;
4. Except Clause 21 (viii), all the above remaining charges were held proved against the petitioner. Basing on the enquiry report, the disciplinary authority, after issuing show cause notice and receiving explanation from the petitioner, considered the misconduct allegedly committed by the petitioner is serious in nature and in the interest of discipline and reputation of hotel, terminated the services of the petitioner with immediate effect, vide proceedings dated 24.12.1999.
5. Aggrieved by the termination order dated 24.12.1999, the petitioner preferred an appeal before the 2nd respondent. The 2nd respondent, in so far as proof of charges leveled against the petitioner is concerned, took the view that though the charges leveled against the petitioner are proved but punishment imposed against the petitioner is too harsh, and further observed that the termination of services is nothing but denial of livelihood and equivalent to capital punishment in the sense that the employee whose services are terminated and his family have to starve for want of livelihood. Accordingly, vide order dated 27.10.2000, the 2nd respondent set aside the proceedings of the disciplinary authority and directed reinstatement of the petitioner into service with half back wages and continuity of service with immediate effect.
6. Against the said order, the 3rd respondent filed second appeal before the 1st respondent. The 1st respondent Authority upon reappraisal of evidence and taking into consideration the contentions put forth on either side, held that the enquiry report cannot be said to be vitiated for not following the principles of natural justice as alleged by the petitioner and that there is no material placed on record by the petitioner that the 3rd respondent management resorted to any victimization and took into consideration the evidence of MW 3 that earlier also the petitioner was punished for insubordination, disobedience, disorderly behaviour, unauthorized absence from work etc., treated the misconduct committed by the petitioner as of serious nature which resulted in about 20 minutes delay in service to the hotel guest, for which the customer got annoyed and commented against the management, which is nothing but damage to the reputation of the hotel. Thus, the 1st respondent Authority took the view that this is not a fit case for reinstatement. Taking into account all the aspects of the matter, the 1st respondent Authority thought it fit that paying reasonable compensation would meet the ends of justice. The 1st respondent Authority also took into consideration the fact that the 3rd respondent management came forward to offer compensation over and above his eligible gratuity and back wages in deposit with the lower authority and also the fact that the 3rd respondent has been paying monthly wages regularly from November 2000 till the date of disposal of the second appeal, granted compensation of Rs.45,000/- (Rupees forty five thousand only) including the amount in deposit with lower authority . The 1st respondent/second appellate authority also held that the petitioner is entitled for gratuity as per law and accordingly, directed the 3rd respondent to pay compensation awarded within a period of 15 days from the date of receipt of the order. Aggrieved by the same, WP.No.2124/2002 is filed.
7. The petitioner in W.P.No.2126/2002 was appointed on 01.02.1983 on a salary of Rs.216/- per month. At the time of termination, the petitioner was drawing salary of Rs.2,700/- per month. In his service, a domestic enquiry was held against the petitioner on the following misconducts under the certified standing orders of the Company;
Clause 21 (ii): Squatting or remaining anywhere within the presmies of the establishment other than the appointed place and delivering speeches and raising slogans with a view to intimidation, coerce and threaten the management and to incite workmen against the management of the establishment.
Clause 21(iii): Striking work or inciting, abetting or instigation others to strike work or any act in furtherance thereof in contravention of the provision of the law or any rule having the force of law.
Clause 21(v): Riotous or disorderly behaviour or commission of any act subversive of any discipline or good behaviour in the premises of the establishment or in course of his duties or in the housing colony or club of the company or anywhere outside the establishment’s premises which directly effects the discipline or administration of the establishment or directly linked to the general relationship of the employer and employee or has material bearing on the smooth working of the establishment;
Clause 21 (xiii): Wrongful restraint or wrongful confinement of any office employee or any person connected with the work of the company within the establishment or outside the premises of the establishment or in the housing colony or in the club of the company;
Clause 21 (xvi): Holding meeting inside the premises of the establishment without previous permission of the management or except in accordance with the provision of any law from time being in force.
Clause 21 (xviii): Wilful interference, within the premises of the establishment with the work of another workman of of a person authorized by the company to work on its premises;
Clause 21 (xxvi): Use of offensive, vile or obscene language
8. Except Clauses 21 (xiii) & 21 (xxvi), all the remaining above charges were held proved against the petitioner. Basing on the enquiry report, the disciplinary authority, after issuing show cause notice and receiving explanation from the petitioner, considered the misconduct allegedly committed by the petitioner is of serious nature and in the interest of discipline and reputation of hotel, terminated the services of the petitioner with immediate effect, vide proceedings dated 24.12.1999.
9. Aggrieved by the termination order dated 24.12.1999, the petitioner preferred an appeal before the 2nd respondent. The 2nd respondent, in so far as proof of charges leveled against the petitioner is concerned, took the view that though the charges leveled against the petitioner are proved but punishment imposed against the petitioner is too harsh, and further observed that the termination of services is nothing but denial of livelihood and equivalent to capital punishment in the sense that the employee whose services are terminated and his family have to starve for want of livelihood. Accordingly, vide order dated 27.10.2000, the 2nd respondent set aside the proceedings of the disciplinary authority and directed reinstatement of the petitioner into service with full back wages and continuity of service with immediate effect.
10. Against the said order, the 3rd respondent filed second appeal before the 1st respondent. The 1st respondent Authority upon reappraisal of evidence and taking into consideration the contentions put forth on either side, held that the enquiry report cannot be said to be vitiated for not following the principles of natural justice as alleged by the petitioner and that there is no material placed on record by the petitioner that the 3rd respondent management resorted to any victimization. The 1st respondent Authority upon reappraisal of the entire evidence expressed the view that the evidence placed on record in the course of domestic enquiry clearly establishes the charges leveled against the petitioner.
11. Thus, the 1st respondent Authority took the view that this is not a fit case for reinstatement. Taking into account all the aspects of the matter, the 1st respondent Authority thought it fit that paying reasonable compensation would meet the ends of justice. The 1st respondent Authority also took into consideration the fact that the 3rd respondent management came forward to offer compensation over and above his eligible gratuity and back wages in deposit with the lower authority and also the fact that the 3rd respondent has been paying monthly wages regularly from November 2000 till the date of disposal of the second appeal, granted compensation of Rs.50,000/- (Rupees fifty thousand only) including the amount in deposit with lower authority . The 1st respondent/second appellate authority also held that the petitioner is entitled for gratuity as per law and accordingly, directed the 3rd respondent to pay compensation awarded within a period of 15 days from the date of receipt of the order. Aggrieved by the same, WP.No.2126/2002 is filed.
12. Several judgments including the judgment of the Apex
[1]
Court in Syed Yakoob vs. K.S.Radhakrishnan and ors.
have been relied upon by the respondents on the proposition that this Court can issue Writ of Certiorari for correcting errors of jurisdiction committed by Courts and Tribunal, it is supervisory one and in exercising jurisdiction, the Court is not entitled to act as a Court of Appeal. Basing on the several pronouncements of the Apex Court, the learned counsel appearing for the respondents contended that this Court cannot indulge in re-appreciation of evidence while exercising the jurisdiction in a Writ of Certiorari and the jurisdiction shall only be confined to correct the errors committed by the inferior courts or tribunals. According to the learned counsel, in the instant cases, concurrent findings have been recorded in regard to proof of misconduct against the petitioners and the said findings are based on evidence and therefore, the said findings cannot be interfered with by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
13. On the other hand, the contention of the learned counsel appearing for the petitioners is that resorting to strike for minimum wages to be paid to the workers cannot be said to be illegal and terminating the employees on the ground that they resorted to strike is illegal and this Court therefore can interfere with the order of termination.
14. To appreciate the rival contentions, the undisputed facts have to be examined. The petitioner in W.P.No.2126/2002 is an Office Bearer of the Hotel Workers Union. He brought several workers to the Hotel premises and resorted to strike for several days. Admittedly, some outsiders were also brought to the premises of the Hotel and the business of the Hotel had been paralyzed. The respondents’ Hotel is a Star Hotel and on account of the disorderly activities of the petitioners, lot of inconvenience had been caused to the customers and therefore, the disciplinary proceedings have been initiated against the petitioners. Moreover, when disciplinary action was proposed against one of the petitioners, the petitioner in W.P.No.2124/2002 who is an office bearer of the Hotel Workers Union threatened the management to withdraw the disciplinary action against the petitioner in the other Writ Petition and thereafter resorted to strike along with some other workers and some outsiders.
15. From the conduct exhibited by the petitioners, it cannot be said that they merely resorted to only protest. By their disorderly behaviour the regular business of the Hotel had been affected.
16. As regards Mr.V.Narendra Kumar, the petitioner in W.P.No.2124/2002, the Management led voluminous evidence in proof of his disobedience and disorderly behaviour. The Management also adduced evidence to show that the petitioner resorted to the similar misconduct earlier and he was suspended previously, which fact he admitted in the cross examination in the departmental enquiry. Similarly, as against Mr.N.S.Prasad, the petitioner in W.P.No.2126/2002, the Management also adduced enough evidence before the Enquiry Officer indicating that he being office bearer of the Hotel Workers Union lead the entire strike and prevented some of the workers from attending their duties and the strike went on for several days. Thus, this is a case wherein it cannot be said that there was no evidence against the petitioners before the Enquiry Officer. The findings recorded by the Enquiry Officer are based on evidence and I absolutely see no force in the contention urged by the learned counsel appearing for the petitioners that the findings of the lower authorities are not based on evidence and reasoning.
17. The following contentions have been urged in the present writ petitions, viz., that the principles of natural justice have not been followed, there was no fair enquiry and that the Management resorted to victimization whereas several persons who are involved in the strike were taken back into service and only the petitioners were targeted. The contention that the enquiry was not fairly held is put forth by the petitioners for the first time in these writ petitions and no such contention has been urged before the lower authorities. Another contention that an outsider was appointed as Enquiry Officer contrary to the regulations of the Management of the respondent Hotel has also been raised in these writ petitioners for the first time and such contention cannot be taken into consideration, as evidently no prejudice is shown to be caused to the petitioners in the domestic enquiry.
18. In support of the contention that the Management resorted to victimization by targeting only the petitioners, the learned counsel appearing for the petitioners relied on the judgment of the Hon’ble Supreme Court in Burn and Co Limited vs. Their workmen[2] wherein it is held that where several workers participated in illegal strike there would not be any justification for suspending or dismissing few workers, particularly, when there is no clear distinction between these persons and large number of participant workmen who had been taken back into service. Similar view has been taken in M/s.Oriental
[3]
Containers Ltd v. Engineering Workers Assocn .
19. In the present case, distinction can be drawn between the conduct of the petitioner Mr.N.S.Prasad, who is the office bearer of the workers union and other workmen who participated in the strike. In the instant case, the very demand made by the petitioner Mr.N.S.Prasad is that the Management should not resort to disciplinary action against the erring workman which itself is illegal. He was the person who prevented the other workers from attending their duties, he brought some workers from outside and lodged a protest in the Hotel premises for which there is abundant evidence adduced before the Enquiry Officer by the Management. Therefore, the root cause for the entire trouble was Mr.N.S.Prasad and therefore, in the instant cases, it cannot be argued that as some other workers were taken back to duties, the petitioners ought to have been reinstated into service.
20. It is already said that the act committed by the petitioner Mr.N.S.Prasad cannot be said to be merely protest, but by instigating several workers and bringing some other individuals from outside, the petitioner Mr.N.S.Prasad totally paralyzed the work in the respondent Hotel which resulted in loss of reputation of the Hotel. In this context, it would be relevant to refer the judgment of the Hon’ble Supreme Court
[4]
i n Hombe Gowda Educational Trust v. State of Karnataka wherein it is held as follows:
“The Supreme Court has come a long way from its earlier viewpoints. The recent trend in the decisions of the Supreme Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of the Supreme Court it has been noticed how discipline at the workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law.”
21. Thus, in the present case there is enough evidence showing that both the petitioners resorted to misconduct as alleged by the Management. The lower authorities, which held against the petitioners, have recorded their findings on proper evaluation of evidence available on record. The contention of violation of the principles of natural justice and the victimization have been taken for the first time in these writ petitions without there being any material proof against the Management. The Management need not take action against each and every worker who participated in the strike. It can take action against the workers who are the root cause of the indiscipline and disorderly activities in the premises of the Hotel.
22. In the proceedings under Article 226 of the Constitution of India, this Court does not act as an appellate authority and adjudicate the case on merits by analyzing the evidence. It exercises jurisdiction only within the limits available to it under law. Only the errors leading to manifest injustice and violation of the principles of natural justice or the errors relating to the findings which are not based on evidence or recorded basing on extraneous material can be dealt with in exercise of power of judicial review. In the instant cases, the fact finding authorities have concurrently recorded findings that the misconduct alleged against the petitioners has been duly proved. In the absence of any perversity or lack of evidence, this Court will not reopen the said issue.
23. Now the question therefore would be only whether the punishment imposed against the petitioners which is under challenge in these writ petitions is shockingly disproportionate.
24. The respondent Hotel is a Star Hotel which survives on the satisfaction of the customers. Any sort of indiscipline or disorderly behaviour among the workers would result in total collapse of the business of the Hotel. Therefore, the punishment inflicted on the petitioners, having regard to the misconduct proved against them, in my view, is not shockingly disproportionate, requiring any interference by this Court in these writ petitions. I therefore see no merit in the contentions urged on behalf of the petitioners in these writ petitions, consequently, they are dismissed without any order as to costs.
Pending miscellaneous applications, if any, shall stand closed in consequence.
R.KANTHA RAO,J
Date: 25.11.2014 Dsr
[1] AIR 1964 SC 477
[2] 1958 Law Suit (SC) 175
[3] 1996 LAB.I.C.2166
[4] (2006) 1 SCC 430