B.P.L India, Ltd. v. B.P.L & P.S.P Thozhilali Union

JUDGMENT

1. The two writ petitions are directed against the same award of the Labour Court; one by the management and the other by the union. It arises in a disciplinary matter, about the dismissal of five workers. The misconduct alleged against them was riotous and disorderly behaviour, as referred to in Cl. 39(h) of the company standing orders. The factual allegation is that each of the workmen indulged in physical assault, causing grievous bodily injuries to the managerial staff on the morning of 14 March 1988.

2. The management conducted a domestic enquiry. The workers had participated throughout the enquiry. They had been given opportunity to adduce evidence before the enquiry officer. The workmen were found guilty. The punishment of dismissal was accordingly imposed.

3. The union thereupon invoked the adjudication process visualised under the Industrial Disputes Act, 1947.

4. Many contentions were raised by the union to assail the dismissal.

5. One ground for complaining about procedural impropriety of the enquiry was the omission on the part of the enquiry officer in not marking as exhibits the show-cause notice and the explanation of the workmen. According to the enquiry officer, they formed part of the enquiry. It was, therefore, unnecessary to have them formally marked separately as items of evidence. The Tribunal accepted the explanation.

6. A vague suggestion about not recording all the statements, and about not acting upon a medical certificate without the examination of the doctor, were rightly turned down by the Tribunal as not affecting the validity of the enquiry viewed from the requirement of natural justice.

7. Before the legal aspects are considered, it is desirable to recapitulate the facts — the skeletal facts — that have a bearing on the legal contention.

8. N.V Subramaniam who belonged to managerial staff had filed a complaint about the physical assault made by the striking workers including Raghavan and Rajamanickam. The location of the incident was near the B.P.L bus stop on the Pollachi Road diversion. A stone hurled by the workman hit him on his right arm causing injury.

9. Chandramohan Nambiar, another person belonging to the managerial personnel, complained that worker Prabhakaran attacked him and others, near the same place. He was beaten with bamboo sticks.

10. Four witnesses were examined on the side of the management. Chandramohan Nambiar, Remakant Bhat and Sakunthala had given evidence how Prabhakaran had beaten Chandramohan Nambiar. Valson and Narayanan Kutty gave evidence about Raghavan throwing stone at Subramaniam. Their evidence was found to be reliable. Though Subramaniam was not in a position to identify the names of the person who have thrown stone at him, he had spoken about the presence of Valson and Narayanan Kutty near the place of the incident. There was evidence about rubble (the Tribunal prefers the word ‘granite stone pieces’) had been stored near the road side. Valson and Narayanan Kutty gave positive evidence of having witnessed Rajamanickam picking up the stones and flinging them against Subramaniam.

11. On the side of the workmen, evidence was tendered by one who was at the relevant time in the shed improvised for giving shade to the striking workers; that evidence, however, was not accepted by the enquiry officer. This was for the reason that at the relevant time he was at a distance and could not, therefore, be in a position to give a clear version of the incidents. That witness pleaded ignorance about the events which had happened just prior to the incident.

12. An alibi based on a certificate of Employees' State Insurance hospital was not accepted’. The certificate had been issued on 6 March 1984, whereas the incident was on 14 March 1983. The doctor had not been examined.

13. On an evaluation of the evidence on record, the Tribunal, therefore, came to the conclusion that there was legal evidence to establish the infliction of physical injury by the workmen concerned, and in the manner alleged against them.

14. The acceptance by the enquiry officer of the evidence of witnesses examined on the side of the management and the discarding of the testimony of the workers examined on the side of the workers was, therefore, upheld as reasonable. Having gone through the records relating to the enquiry, I fully concur with that finding.

15. The Labour Court, however, took the view that no misconduct is posited, having regard to the situs of the incident The short question to be examined is about the legal tenability of that interpretation of standing orders and the conclusion that followed therefrom.

16. The basic matter to be Considered is the standing order itself. Decisions in individual cases are likely to have shifting shades when the prismatic passage in the actual legal provision differs from one another. It is, therefore, imperative that the provision is looked at, without embellishment or confusing background effect. It reads as follows:

“Riotous and disorderly behaviour during working hours within the premises of the company or any act subversive of discipline either within or outside the premises of the company.”

[emphasis supplied]

17. Even under the pristine law of master and servant, a workman could not escape the consequences of his misconduct for the only reason that it was committed outside the working premises. Many crimes simultaneously form acts of misconduct: embezzlement of employer's money, for example. One who carries money of his master to the bank situate outside the factory premises, and misappropriates it while outside the boundaries of the factory premises, cannot be heard to say that there was no misconduct at all as the act attributed against him was just outside the factory gate. On the other hand, there can be extreme cases where some act totally unconnected with the employer-employee relationship, but amounting to one of the offences as provided by a statutory provision (a drunken brawl for example),’ may not be appropriately alleged as an industrial misconduct of the worker. Like any other person, the employer also would be interested in the lawful and orderly behaviour of his employee, or for that matter, of any citizen. Actions encroaching into area of crimes, may in such circum stances expose the employee to the process of ordinary criminal law of the realm. It may not be appropriately made a part of the disciplinary jurisdiction of the management. In between, there are very many cases coming in the grey area, where the contours are hazy and consequently the decision difficult.

18. Perhaps the earliest decision of the Supreme Court on this aspect of the matter was one contributed by an industrial dispute in the State of Kerala. The employee involved was hone other than the president of the union. One of the witnesses examined in the case, then a trade union leader, later became a Judge of this Court. The cause of the union was argued by a pioneer trade unionist of the State, Sri Panampilly Govinda Menon, who was later the Minister for Law in the Government of India. The decision is Tata Oil Mills Co. Ltd. v. Workmen [1964-II L.L.J 113]. Gajendragadkar, C.J, delivered the judgment on behalf of a strong Bench of three Judges. Even those who seek to analyse judgments, and assess. Judges on the basis of the direction they chance to see in the judgments, and classify them as “conservatives,” “progressives,” or “revolutionaries,” would not bring the learned Judge or any of he Judges of the Bench within the conservative category.

19. Though the assault alleged against a fellow-workman had admittedly happened far away from the factory gate, a misconduct was held to have been committed. An extreme punishment was imposed, snapping the employment connection altogether. (A magnanimous managemental ex gratia offer does not in any way detract from these basic facts). A principle was established clearly for the governance of all the Courts and Tribunals. .

20. As noted earlier, there have, however, been other situations governed by dissimilar standing orders, where different conclusions have been come to by various Courts including the Supreme Court. Of all these cases, Glaxo Laboratories (India), Ltd. v. Labour Court, Meerut [1984-I L.L.N 57], was the trump card for the trade union. The Tribunal also felt it so. The understanding of the Tribunal of that decision, persuaded it to pronounce against the management and in favour of the union. The strands of reasoning and the reasonability thereof may now be examined.

21. Even a casual glance at the crucial clause of the standing orders will reveal prominently and strikingly the wide wording, indicating the expansiveness of the situs of the misconduct.

22. It is desirable to have a brief recapitulation of the historical and legal background in relation to industrial employment and the incidents thereof including termination, before the short and direct question is considered. The Indian worker too had a difficult terrain to negotiate, before he could, on equal terms, parley with his employer.

23. Workers, by themselves had inhibited imagination and vision in relation to loftier goals and larger ideals, was the observation and experience of an acclaimed trade union revolutionary like Lenin. Lenin expressed it candidly when he said in “What is to be Done”:

“The history of all countries shows that the working class, exclusively by its own effort, is able to develop only trade union consciousness, i.e, the conviction that it is necessary to combine in unions, fight the employers, and strive to compel the Government to pass necessary labour legislation, etc. The theory of socialism, however, grew out of the philosophic, historical and economic theories elaborated by educated representatives of the propertied classes, by intellectuals.”

(See “What is to be Done” V.I Lenin, Collected Works, Vol. 5, page 375.

It is to the credit of the intelligent in every country that substantial contribution was made by them in the development of labour laws. Social revolutionaries with intellectual insight and involvement like Sidney and Beatrice Webb, (co-authors of “History of Trade Unionism”) and many, others helped to structure the laws and to nurture the cause of the then weaker worker. Development laws was a facet of the fight for social justice. This immediate background is helpful even for a casual browsing of the Standing Orders Act.

24. Standing orders framed under the Industrial Employment Standing Orders Act, 1949 (hereinafter referred to as the Standing Orders Act). They have, therefore, to be understood with reference to the Act from which it takes its life and derives its sustenance. The Standing Orders Act is an important enactment, in the field of the industrial jurisprudence of the country. Along with other contemporaneous enactments like the Industrial Disputes Act, 1947, the Employees Provident Funds Act, 1952, and the Employees' State Insurance Act, 1948, it gave unto the labourers powerful weapons to pierce through the otherwise impenetrable fort of laissez faire. The Tribunals unlike, the civil Courts, could make new contracts for the parties. Their powers were not confined to the construction of a contractual clause, but extended to the creation of a new right in favour of the weaker element — the labour — in the larger interests of social justice. Security of service, is essential, so that the workman could have reasonable security about the morrow, whether the misfortune is from an injury, accident, ailment or a managerial action like dismissal.

25. The Standing Orders Act, achieved a laudable objective for the protection of the labour, by clearly defining very many rights, responsibilities and duties on the part of the employer and the workmen. Basically, it is a benevolent social legislation. Till the Glaxo Laboratories case [1984-I L.L.N 57] (vide supra), no decision of any Court had referred to standing orders as a penal statute. The Supreme Court has in Glaxo Laboratories case [1984-I L.L.N 57] (vide supra), no doubt now made such an observation. That has to be noted by the Courts. Till such time as it is varied, the observations have their own force. The decision itself has not in any way departed from the discussion and reasoning contained in the earlier decisions, but had only sought to distinguish them on factual basis. The High Court will have, therefore, to advert to and understand the effect of earlier decisions too.

26. The approach the inferior Courts have to adopt in such circumstances, has been lucidly laid down recently in British Medical Association v. Greater Glasgow Health Board [1989 (1) All E.R 984]. Even assumptions consistently made in the decisions of the House of Lords, would not constitute a dictum binding on the Courts below, if they are not distilled ratios having binding effect. Viewed that way, many passages of the decision in Glaxo Laboratories case [1984-I L.L.N 57] (vide supra), useful as they are in understanding the approach which the Courts and authorities should adopt towards the weaker of the two competing forces in the social set up, cannot be understood divorced from all that had been laid down hitherto, or had formed the basis of the industrial jurisprudence.

27. The Glaxo Laboratories case [1984-I L.L.N 57] (vide supra), has not given any interpretation which would render the standing order a dead letter. There is a summary of all relevant decisions rendered till then in the Glaxo Laboratories case (vide supra). The points on which special attention is meritted may also be noted in the process of perusing that detailed judgment.

28. While referring to the Mulchandani Electrical and Radio Industries, Ltd. v. Its workmen [1975-I L.L.N 269], the Supreme Court observed in Para. 15, at page 65 of 1984 — I L.L.N:

“… If a workman is involved in a riot or indulges in fighting somewhere far away from the premises of the establishment, it has no causal connection with his performance of duty in the industrial establishment in which he is employed.”

Later it was observed in Para. 15, at page 65:

“… merely because it has some remote impact on the peaceful atmosphere in the establishment, there was no justification for using the words of limitation contained in a standing order cannot be ignored …”

(The standing order therein made mention of any commission of fraud within the premises or precincts of the establishment). The decision in which the matter was directly discussed and pronounced upon, upheld the punishment of a workman who assaulted another workman, while travelling in a train, and far away from the factory premises, when the workman, was on his way home after the day's work. The Mulchandani case (vide supra) decision has not been expressly declared as not being the law any longer.

29. In Central India Coalfields case [1961-I L.L.J 546], an incident taking place in the quarters at a short distance from the coa-bearing area was treated as having occurred in the vicinity of the establishment. While referring to it, Glaxo Laboratories case [1984-I L.L.N 57] (vide supra), observed in Para. 16, at page 66:

“… that the misconduct prescribed-in the standing order would attract a penalty has a causal connection with the place of work as well as the time at which it is committed, which would ordinarily be within the establishment and during duty hours.”

The decision does not go to hold that the front gate of a factory establishment is too far away from the precincts of a factory as referred to in the standing order. Equally it cannot be said that separation in time by a few minutes before or after the duty time, would take the incident to a remote area from the “time content” point of view of the standing order.

30. In British India Corporation, Ltd. case [1964 (4) S.C.R 930], a misbehaviour in the club premises was treated as one within the establishment of the company.

31. In Lalla Ram v. D.C.M Chemical Works, Ltd. [1978-II L.L.N 1], the assault on an officer attempting to resist on encroachment of the factory area was held sufficient to impose punishment under the relevant standing orders.

32. The Tata Oil Mills case [1964- II L.L.J 113], was explained away in the Glaxo Laboratories case [1984-I L.L.N 57] (vide supra), as laying down the necessity to establish the cause or connection of the misconduct and the employment. Glaxo Laboratories case [1984-I L.L.N 57] (vide supra), made it “abundantly clear and incontrovertible,” that the causal connection in order to provide linkage between the alleged act of misconduct and employment must be “real and substantial, immediate and proximate and not too remote or tenuous.”

33. In Glaxo Laboratories case [1984-I L.L.N 57] (vide supra), a section of the workers resorted to an illegal strike, on the very day on which a lockout had been lifted pending negotiations between the management and the workmen. The management then obtained an order from a civil Court restraining the workmen from indulging in unfair and illegal activities. On a later day some of the loyal workmen travelling between the city and the factory were manhandled “during the journey in the bus at different places.” The relevant standing order, Cl. 22(x) brought within it and any act subversive of the discipline committed within the premises of the establishment or in the vicinity thereof. The factual finding was that the manhandling was not within the factory premises. It remained to be examined whether the incident was within the vicinity of the factory premises. On the facts, it was held to be otherwise. That, and that only, is the ratio of the decision.

34. The standing order in the present case, is differently couched. The difference is not marginal. It is substantial. While Glaxo Laboratories Standing Order contains words of limitation, the standing order in the present case contains words of expansion. The comparable standing order is that contained in the Tata Oil Mills case [1964-II L.L.J 113] (vide supra).

35. A question of interpretation and the invocation of the principles of interpretation would arise only if there be ambiguity in the provisions. Absent ambiguity, interpretational exercises are irrelevant. In the present case, on the wording of the clause, there cannot be any ambiguity whatever.

36. A misconduct in spite of its location, would be a misconduct, when committed by an employee. That is the clear meaning, and the real effect of the words in the standing order.

37. Hypothetical considerations are then out of the way. The union did not have a case that the clause was ambiguous. If they do have a case like that, that grievance has to be canalised in the manner laid down by law. It shall not be a matter of some abrupt thinking or casual dessertation. The employer and the employee are given the power to seek variation or an amendment of a provision in the standing order, if they feel that the just rights are irrationally or unreasonably annihilated. The union did not have a case that the clause was being used as an instrument of torture. The union did not have any contention that the clause had been disturbingly vague, and that the vagueness of the clause had been mercilessly exploited to the advantage of the management and to the detriment of the labour. These are all matters for pleadings and substantiation before the identified authority under the Standing Orders Act. No such attempt as to have an adjudication under the Standing Orders Act had been made hitherto. It will then have to be assumed that the clause is accepted, and is acceptable to, the union, and is, therefore, binding on the workers.

38. Considerations whether an incident any where in the world could be brought within the words “whether inside or outside,” are too remote and too hypothetical to be dealt with in a general fashion. In the present case, the Tribunal did so:

“The use of the word outside is vague and cannot be confined to the vicinity of the establishment. By making use of this standing order the management can proceed against any employee in respect of any act committed anywhere in the world. Such an interpretation would make the clause meaningless and redundant.”

39. The Tribunal erred in influencing itself by such a wild conjectural hypothesis. The facts are tell-tale in the present case. Viewing the facts and scrutinising the standing orders, the conclusion is inescapable that the incidents had intimate connection’ with the industrial employment and that it occurred at a place and within a space which cannot be characterised as distant in any sense of that term.

40. Tata Oil Mill case [1964-II L.L.J 113] (vide supra), also did not give, to a similar standing order, a wildly wide interpretation. Disputes of a purely private or individual character are not brought within the standing order — said the Bench which decided the Tata Oil Mills case (vide supra). An assault by an individual employee, when originating from private feud, though punishable under the Penal Code, is beyond the standing order, the Court continued. With equal force, the Court also stated that the standing order would get attracted if it is shown:

“that the disorderly or riotous behaviour had some rational connection with the employment of the assailant and the victim.”

[emphasis supplied.]

41. It should now be emphasised that standing order 22(viii) considered in the case defined misconduct, as enveloping in its fold, “riotous, or disorderly or indecent behaviour within or without the factory.” The assailant in the Tata Oil Mills case [1964-II L.L.J 113] (vide supra), committed an assault on his co-employee outside the factory premises. The evidence in the case brought out that it was not a purely private or individual matter. The assault was referable to the difference of opinion between the two employees in regard to the introduction of a bonus scheme on which two rival unions were sharply divided. When the assault was in that background, the misconduct was well within the purview of the standing order, according to the Court.

42. In the present case, it is unnecessary to stretch matters that far. The assault and attack took place just before the factory gate. It was referable to a strike situation of the factory concerned. Those assaulted and attacked were officers of the management. They were proceeding to attend the work, though the strike was on. The striking workers had their agitation shed at the factory gate itself. It is then abundantly clear that the provocation for the assault and attack was not a private feud, or an individual conflict. It arose out of industrial employment, and was directly and integrally connected with the employment situation, with a rational and strong connection with the employment of the assailants and the victims thereof. The decision is fully covered by Tata Oil Mills case [1963-II L.L.J 113] (vide supra).

43. The discussion inescapably leads to the conclusion that the Tribunal committed an error of law when it thought that no misconduct could be posited. That being the only reason for disturbing the imposition of penalty in the domestic enquiry, the award becomes unsustainable. It has therefore, to be, and is, hereby quashed.

44. The Tribunal, despite its upsetting the punishment imposed on the workers declined to order back-wages to them. The deprivation of the back-wages has been complained of by the workmen in the writ petition filed on their behalf. The reaction of the Tribunal, to the question of back-wages, cannot be characterised as unjustified in the circumstances. However, in the light of the conclusion that the punishment of dismissal imposed by the management is not amenable to any correction by the Tribunal, the subsidiary question of payment for the interim period would not arise at all.

45. The writ petition filed by the workers, Original Petition No. 3841 of 1989, it follows, is liable to be dismissed. I do so.

46. The writ petitions project in sharp focus a sensitive industrial issue, emerging frequently in current times. That it has happened in a public sector undertaking (and not one owned by a “heartless capitalist” as is described and depicted in very many publications on that topic), cannot also be easily overlooked. It is time that the Courts should clearly define the responsibilities of fighting trade unionists in the background of a democratic polity, and the relevance of a welfare-State.

47. Time was when even the labour was extremely timid. Many were reconciled to treat their misery as a feat of fate; and console themselves: what is fated cannot be blotted; what cannot be cured has to be endured. The unending hours of work, sapped the vitality of the workers, and imperilled the very life of the women workers who had added agonies. Even then, early women trade unionists, received rebuffs from the women workers themselves. Such has been the sad experience of Emma Paterson and Jeanette G. Wilkinson. The experience is nearly recapitulated by a contemporary of theirs, in these words:

“Working women did not respond to their efforts, and at one of her lectures poor Miss Wilkinson was interrupted by a rosy-cheeked matron shouting out, ‘Ere, shut up, do: this is what I call woman's rights,’ holding up before the amused audience an exceedingly fine specimen of baby.”

[See Labour, Life and Literature by Frederick Rogers, at page 93].

Initially, Indian Labour was also somewhat timid. Idealists, including the women counterparts, were in the trade union front in India too. (The first effective trade union leader was a woman, Anasuyu Sen Sarabhai. [See Indian Labour Movement by G. Ramanujam, page 13]. In the early days of employer-employee negotiations, labour could not think of demanding a share in the management of an enterprise. Deshbandhu C.R Das chided the meek labour representative, for such cowardice. The incident is sketched as follows:

“The company's directors requested C.R Das to hold another meeting of the Conciliation Board in which they wanted to take part. During the discussions in the Board, Manu Subedar for the company sarcastically commented:

‘Next they (the Labour) will demand the General Manager's post.’

The members shouted at it “No. No.” Deshbandhu C.R Das looked hard at the members, his eyes emitting fire. He shouted back “No, say Yes.”

[See Indian Labour Movement by Sri G. Ramanujam, at page 38].

48. Over the years, the worker has ceased to be the meek mouse. Militancy has caught up with the trade union movement. So far so good. Apprehensions were expressed when trade union leadership appeared unconcerned in breaking the limits. Incidents which could undermine the existence of the establishment, were at least occasionally suffered, without demur, by the management and the Government alike. The trend was visible even in countries with an enlightened working class movement. Lord Denning, noted all over in the world for his clear, forceful and humane views, became the target of attack of the trade unions, when he narrated some hard truths about the lawlessness on the part of the trade unions. He had cautioned them about a back lash from the patient public, when they are driven to the wall. He was attacked vehemently and virulently by the trade union movement of England. Denning has put up his defence in his popular publications, Chap. 2 (Part IV) of the “Discipline of Law” and Chap. 6 of the “Closing Chapter.” Many other Judges in the Court of Appeal and the House of Lords have expressed their anguish at these disturbing developments. [Vide Laws Against Strikes (Fabian Research Series 305)]. Sociologists can research into, and propound theories about all those events, including the loss of the labour, and the gain for the conservatives. Developing countries can ill-afford fatal assaults on their infantile industrial projects. Whatever be the grievance of the labour, and, however, vigorous be the ventilation of such grievances, there cannot be any doubt that assault and attack on the managerial personnel cannot be condoned or compromised with. While the management has to abandon arbitrary deals, the labour has to eschew mischievous violence. Discipline in an establishment has to be preserved at all costs; almost like the apple of the eye. Violence, crude violence, directed against the top managerial personnel, would be the swan song of industrial peace. No worker, can embrace violence as a motto of grievance redressal. The tragedy gets aggravated when viewed in the background of a nation where non-violence was a well-canvassed creed. Philosophies apart, rule of law cannot tolerate a workman launching a physical attack, right in front of the factory gate, and on the top managerial personnel, when there was no provocation whatever from the side of the management. May be, among the managements, there are many who are unscrupulous. Such cases have to be dealt with differentially and separately. The present is not the one like that. Industrial Tribunals should not develop cold feet, when they have to deal with hard cases, where the very structure, the morale and discipline of an industrial establishment are imperilled. I have no hesitation in holding that the seriousness and gravity of the misconduct, attract serious and grave punishment. If the management thought that dismissal was the proper punishment, that cannot be characterised as viciously unreasonable, justifying interference in writ jurisdiction. The Court has only to uphold and declare the validity of the managerial action in such circumstances.

49. The result is that the writ petition by the management is allowed; and that by the workers, is dismissed. There will be no order as to costs, in either of the cases.