ELANGO P Vs. LABOUR COURT

JUDGEMENT

(1.) BY an award, dated April 26, 1993 of the first respondent Labour Court, Madurai in I.D. No. 16 of 1989, which is impugned in the above writ petition, the order of dismissal, dated January 19, 1985, passed by the second respondent-management dismissing the petitioner was confirmed. Hence the above writ petition seeking for the issue of a writ of certiorarified mandamus calling for the records on the file of the first respondent in I.D. No. 16 of 1989, dated April 26, 1993, and to quash the same and consequently direct the second respondent to reinstate the petitioner with full back wages and other benefits. The petitioner was charged for the violation of Clauses 16(12) and 16(26) of the Standing Orders of the company which read as follows : "Clause 16(12) : ... Drunkenness, riotous or disorderly behaviour inside the premises or use of abusive language or any act likely to cause breach of peace or any act subversive of discipline. ... Clause 16(26) : ... Threatening, abusing, intimidation or assaulting workmen/supervisory staff/officer inside the premises or outside. ....." It is alleged that on June 29, 1984 between 3.20 a.m. and 3.30 a.m. the petitioner is alleged to have thrown acid on the face of the co-employee, with regard to which a criminal case has also been filed and tried in S.C. No. 171, of 1985 before the learned Assistant Sessions Judge, Sivaganga, for an alleged offence punishable under Section 326 IPC, wherein the petitioner was originally convicted and sentenced to five years rigorous imprisonment. But, on an appeal in Crl. A. No. 73 of 1986 the Additional Sessions Judge, Ramanathapuram, at Madurai, by an order, dated April 27, 1987, acquitted the petitioner giving benefit of doubt as found in Para. 17 of the said order, dated April 27, 1987.Pursuant to the disciplinary action initiated against the petitioner under a chargememo, dated July 2, 1984, the second respondent-management also suspended the petitioner from July 2, 1984. However the said suspension was lifted on August 25, 1984. Thereafter, an enquiry was conducted on October 27, 1984 in the light of the explanation offered by the petitioner to the said chargememo, dated July 2, 1984, and the enquiry officer in his report, dated November 22, 1984 found the petitioner guilty of the said charges and consequently the second respondent-management, after giving a second show-cause notice, dated December 13, 1984, to the petitioner, considered his explanation, dated December 17, 1984, dismissed the petitioner on January 19, 1985, which was ultimately confirmed by the first respondent-Labour Court in an award, dated April 26, 1993 in I.D. No. 16 of 1989, which is impugned in the above writ petition. During the pendency of the industrial disputes the petitioner was acquitted by the Additional Sessions Judge, Ramanathapuram at Madurai by an order dated April 27, 1987, in Crl. A. No. 73 of 1986 and the said order was also marked to the first respondent-Labour Court on behalf of the petitioner. But, however the first respondent-Labour Court even though, has referred to the said order of acquittal dated April 27, 1987, in Crl. A. No. 171 of 1985, had not discussed the same. According to Sri C. R. Chandrasekaran, learned counsel appearing for the petitioner, the impugned award, dated April 26, 1993, in I.D. No. 16 of 1989 is illegal inasmuch as the Labour Court failed to appreciate the order dated April 27, 1987 in Crl A. No. 171 of 1985 on the file of the Additional Sessions Judge, Ramanathapuram at Madurai, wherein the petitioner was acquitted of the charges which form basis for the impugned disciplinary action also.Placing reliance on a decision of the Apex Court in Captain M. Paul Anthony v. Bharat Gold Mines, Ltd., 1999-I-LLJ-1094, the learned counsel for the petitioner contends that the petitioner was not paid subsistence allowance between July 2, 1984 to August 5, 1984, and therefore his right to defend himself in the impugned disciplinary action has been denied and consequently the impugned order of dismissal, dated January 19, 1985, is violative of the principles of natural justice. Learned counsel for the petitioner also contends that order of suspension, dated July 2, 1984, was lifted by the second respondent-management on August 25, 1984 since the charges are not grave in nature and if that be so, the impugned punishment of dismissal is shockingly disproportionate, inasmuch as the criminal Court has held that even though the complainant was found to have been injured on his face by alleged throwing of acid, one of his eyes had been affected and that in any event, the charges are held to be not proved, in the light of the findings of the learned Additional Sessions Judge, Ramanathapuram at Madurai in Crl. A. No. 73 of 1986. Per contra, learned counsel appearing for the second respondent-management contends that there is no bar to initiate disciplinary action against the petitioner even though a criminal case has been filed against him with regard to the same occurrence. The petitioner was acquitted in the criminal appeal only on April 27, 1987, whereas the enquiry officer in his report, dated November 22, 1984 had arrived at a conclusion that the charges were held proved in the light of the materials placed before him during the enquiry, pursuant to which the petitioner was dismissed from service after giving a fair and reasonable opportunity to him during the enquiry and by proving a second show-cause notice before dismissing him by an order, dated January 19, 1985, which was confirmed by the first respondent Labour Court in the impugned award, dated April 26, 1993, made in I.D. No. 16 of 1989.It could not be lawfully presumed that the charges are not grave in nature, merely because the order of suspension dated July 2, 1984 of the petitioner was lifted on August 25, 1984 in view of the decisions of the Apex Court in Uttar Pradesh State Road Transport Corporation v. Subhash Chandra Sharma 2000-I-LLJ-1117 that a threatening to cause violent assault on the co-employee itself is considered to be grave in nature. Sri S. Ravindran, learned counsel for the second respondent-management, further contends that even though the petitioner was not paid the subsistence allowance between July 2, 1984 to August 25, 1984, he cannot have any grievance in that regard because the order of suspension was lifted on August 25, 1984 itself and only thereafter the enquiry was conducted viz., October 27, 1984. I have given careful consideration to the submission of both sides. No doubt, as held in Captain M. Paul Anthony case (supra), non-payment of subsistence allowance amounts to denial of fair and reasonable opportunity to the petitioner to defend himself in the disciplinary action. The denial of subsistence allowance is considered to be a slow poisoning. The act of non-payment of subsistence allowance can be likened to slow-poisoning of the employee, as the employee is not permitted to sustain himself on account of non-payment of subsistence allowance he would gradually starve himself to death. But, in the instant case, as rightly pointed out by the learned counsel for the second respondent-management, even though the petitioner was placed under suspension on July 2, 1984 the same was lifted on August 25, 1984 and only thereafter an enquiry was conducted on October 27, 1984 in the light of the explanation offered by the petitioner to the chargememo, dated July 2, 1984, after giving fair and reasonable opportunity in the said enquiry. Hence I am unable to accept the contentions of the learned counsel for the petitioner that the petitioner was deprived of giving fair and reasonable opportunity of defend himself on account of non-payment or subsistence allowance from July 2, 1984 to August 25, 1984.It is true that in Captain M. Paul Anthony case (supra) it has been held as follows, in 1999-I-LLJ-1094 at p. 1100 : 22.