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2011 WLR 734
High Court of Judicature at Madras
D. HARIPARANTHAMAN
The Management of M/s. Chidambaram Shipcare Pvt. Ltd., Rep. by Managing Director
Versus
The Presiding Officer & Others
W.P.NOS.19001 TO 19004 OF 2009 & CONNECTED MISCELLANEOUS PETITIONS
Decided on : 12-04-2011
CHIDAMBARAM SHIP CARE PVT. LTD. - V. - WORKMEN & OTHERS - [SECTION 33(2)(B) OF THE INDUSTRIAL DISPUTES ACT, 1947] - [INDUSTRIAL DISPUTES ACT, 1947 - SECTION 33(2)(B) - APPROVAL OF DISMISSAL ORDER - FAIRNESS OF DOMESTIC ENQUIRY - ASSISTANCE OF TRADE UNION LEADER/ADVOCATE - MODEL STANDING ORDERS - UNFAIR LABOUR PRACTICES] - [THE WORKMEN WERE DISMISSED FROM SERVICE BY AN ORDER DATED 20.10.2004. THE APPROVAL APPLICATIONS FILED BY THE MANAGEMENT UNDER SECTION 33(2)(B) OF THE INDUSTRIAL DISPUTES ACT, 1947 WERE REJECTED BY THE LABOUR COURT ON THE GROUND THAT THE ENQUIRY WAS NOT CONDUCTED FAIRLY. THE MANAGEMENT CHALLENGED THE SAME BY FILING WRIT PETITIONS. THE HIGH COURT HELD THAT THE ENQUIRY WAS NOT CONDUCTED FAIRLY AS THE WORKMEN WERE NOT PERMITTED TO HAVE THE ASSISTANCE OF THE OFFICE BEARER OF THEIR UNION, WHO WAS A PRACTICING ADVOCATE, WHEN THE MANAGEMENT WAS REPRESENTED IN THE ENQUIRY BY A LEGALLY TRAINED PERSON. THE COURT FURTHER HELD THAT 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 COURT ALSO HELD THAT 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 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. THE COURT DIRECTED THE REGISTRY TO CIRCULATE THE 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.]
Fact of the Case:
The workmen were dismissed from service by an order dated 20.10.2004. The approval applications filed by the management under Section 33(2)(B) of the Industrial Disputes Act, 1947 were rejected by the Labour Court on the ground that the enquiry was not conducted fairly. The management challenged the same by filing writ petitions.
Finding of the Court:
The High Court held that the enquiry was not conducted fairly as the workmen were not permitted to have the assistance of the office bearer of their union, who was a practicing advocate, when the management was represented in the enquiry by a legally trained person. The Court further held that 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 Court also held that 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 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.
Issues: Whether the enquiry was conducted fairly.
Ratio Decidendi: The Court held that the enquiry was not conducted fairly as the workmen were not permitted to have the assistance of the office bearer of their union, who was a practicing advocate, when the management was represented in the enquiry by a legally trained person. The Court further held that 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 Court also held that 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 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.
Final Decision: The Court dismissed the writ petitions filed by the management.
1. 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 fr
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