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Judgment
S. Palanivelu, J.—Writ petitioner has filed this Appeal, against the order of a learned single Judge of this Court, made in W.P. No. 22470 of
1993.
The appellant/workman has filed W.P. No. 22470 of 1993 for issuance of a Writ of Certiorari, to call for the records relating to the award in
I.D. No. 235 of 1990, dated 23.04.1993, passed by first respondent, quash the same and consequently to direct the second
respondent/Management to reinstate the petitioner with back wages and all other consequent benefits.
The case of the appellant was that he was appointed as a Trainee with the second respondent management on 22.12.1983; he was a
probationer from 1.1.1985; his services were confirmed from 1.1.1986 in the post of Boiler Operator; his last drawn wages were Rs.1,027/- per
month; he was a key trade union activist, who organised the Sri Chakra Tyres Division of the Sundaram Industries Employees Union, and that the
TVS corporate group has been attempting to deter genuine trade unionisation of its workmen by abusive exercise of transfer and disciplinary
powers and by practising gross discrimination against the members of the genuine trade union.
The further case of the appellant was that on 30.07.1989, when he was working in third shift, he was intimidated by a Foreman, by name
Dwarakanath, ostensibly at the instigation and instructions of the management, which was complained to the Deputy Personnel Manager of the
management on 31.07.1989; a preliminary investigation was made thereon and the matter was closed as false, but, a charge memo was slapped on
him as if he had given a false complaint against the Foreman; he submitted an explanation on 13.8.1989; however, not content with the said
explanation, the management ordered a domestic inquiry, in which one S. Thiyagarajan, Deputy Personnel Manager of TVS and Sons Limited,
was appointed as the Enquiry Officer; after the inquiry, the said officer gave a finding to the management, opining that charges were proved; on
receipt of inquiry report, he was dismissed from service on 14.11.1989; then, he preferred a conciliation petition before the Deputy Commissioner
of Labour, which ended in vain; hence, he sent a representation to the Government and thereafter the dispute was referred to the Labour
Court/first respondent, for adjudication.
The Labour Court passed an award on 23.4.1993, holding that dismissal of the appellant was justified and that he was not entitled for any relief.
Hence, he preferred the Writ Petition, wherein the order of dismissal was set aside and he was directed to be appointed as a fresh candidate, but
without back wages, continuity of service, attendant benefits or any monetary benefits. Not satisfied with the said order of the learned single Judge,
he filed this appeal before this Court.
We have heard Mr. V. Prakash, learned senior counsel for the appellant and Mr. A.L. Somayaji, learned senior counsel for the second
respondent/Management.
The learned senior counsel for the appellant would submit that the entire enquiry proceedings are vitiated by bias and the Labour Court has
failed to exercise its power u/s 11-A of the Industrial Disputes Act and has landed in an erroneous conclusion to hold the charges levelled against
the appellant/workman proved and the learned single Judge has also not considered the matter in its proper perspective, thus compelling the
appellant to file this appeal.
On the other hand, the learned senior counsel for the second respondent/Management would submit that both the Labour Court and the learned
single Judge have appreciated the facts and circumstances of the case in their proper perspective, holding that there is no illegality in the whole of
the enquiry proceedings and the punishment of dismissal from service inflicted on the workman does not call for any interference, but, however, the
learned single Judge, taking a lenient view, has ordered fresh appointment of the appellant/workman, which itself is a big relief for the
appellant/workman, but not satisfied even with such a lenient order of the learned single Judge, the appellant has again filed this writ appeal, which
deserves only dismissal.
The charge against the appellant/workman is that he gave a false complaint against his superior officer that he threatened the appellant to remove
from his job. The strong case of the appellant/workman is that he is a key activist in organising the Sri Chakra Tyres Division of the Sundaram
Industries Employees Union and therefore, the Management, which is running a puppet Employees Union to impose unilateral conditions of
service, has targetted him and abusing the disciplinary powers, has ultimately dismissed him from service. This strong plea taken on the part of the
appellant has not at all been considered by the Labour Court, which is expected of to exercise its powers u/s 11-A of the Industrial Disputes Act.
Admittedly, a preliminary enquiry was initiated by the Management on the complaint lodged by the appellant against his superior that he
threatened and in the said preliminary enquiry conducted by the Deputy Personnel Officer of the Management, the complaint of the
appellant/workman was held to be false. Having regard to the entire case on hand, we are unable to believe the said conclusion arrived at by the
said Deputy Personnel Officer, since the very case of the appellant/workman is that his superior officer viz. Mr. Dwarakanath, made such a threat
at him only at the instigation of the Management, since being not satisfied with his active role in launching Employees Union. By initiating preliminary
enquiry and nullifying the complaint lodged by the appellant/workman as false, the Management has proceeded against the appellant/workman for
lodging ''false complaint'' and ultimately dismissed him from service. Thus, the threat posed by Mr. Dwarakanath to the appellant/workman has
become true and the Management was successful in serving walking papers on the appellant/workman, thus fulfulling their ambition of dismissing
the appellant/workman. From this conduct, we are able to find that there is force in the case put up on the part of the appellant/workman that
Mr.Dwarakanath threatened him only with the active support of the Management, lest, for such a charge, which appears to be flimsy, a major
punishment of dismissal would not have been inflicted upon the appellant/workman.
At this juncture, it is to be mentioned that in Mathura Prasad Vs. Union of India (UOI) and Others, , considering the entire case law on the
subject of judicial review, the Apex Court has categorically and in no uncertain terms has ruled:
When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the sub-
rules are required to be strictly followed. A judicial review would lie even if there is an error of law apparent on the face of the record. If statutory
authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be
maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review.
The Labour Court is bound to exercise its jurisdiction as required u/s 11-A of the Industrial Disputes Act. Non-exercise or improper exercise
of the jurisdiction conferred on the Labour Court, by virtue of Section 11-A of the Industrial Disputes Act is held to be illegal in a series of
judgments by the Apex Court since the power of the Labour Court u/s 11-A is analogous to an appellate Court. At this juncture, it is to be noted
that the Labour Court has not only the power and jurisdiction to reappreciate the evidence, but has also a duty u/s 11-A of the Industrial Disputes
Act to consider as to whether or not the impugned punishment was just and proper in the facts and circumstances of the case and whether or not
for the ends of justice it is desirable to inflict a lesser punishment on the concerned employee and to grant relief u/s 11-A there must be a finding
that the discharge or dismissal is not justified.
In the case on hand, the Labour Court, without understanding the undercurrent of the matter, which led and paved the way for the dispute
resulting in the dismissal of the appellant and without considering the question as to whether for the alleged charge of false complaint, such a severe
punishment of dismissal from service is proportionate, has casually dealt with the matter and dismissed the industrial dispute raised by the
appellant/workman. If the Labour Court has properly understood the background of the case, in the considered opinion of this Court, it would not
have landed in such a finding, depriving the livelihood of an employee. The Labour Court and the learned single Judge have failed to find that the
entire enquiry proceedings are biased and the appellant/workman was victimised for his active role in forming an Employees Union.
In this connection, learned Counsel for the appellant draws attention of this Court to a decision of the Hon''ble Supreme Court in Management
of Coimbatore District Central Co-operative Bank Vs. Secretary, Coimbatore District Central Co-operative Bank Employees Association and
Another, , wherein it has been held:
The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered
having regard to the factual matrix in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of
flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. Even
prior to CCSU case, 1985 AC 374 : (1984) 3 WLR 1174 (HL), the Supreme Court of India had held that if punishment imposed on an employee
by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open
to a court to interfere with such penalty in appropriate cases. However, in a case of this nature, the doctrine of proportionality must also be applied
having regard to the purport and object for which the ID Act, 1947 was enacted.
It is well settled that the doctrine of proportionality has its genesis in the field of administrative law. The management, while administering its
affairs, is expected to follow the settled legal principles and treat the employees with full personal consideration without abuse of discretion.
While discussing the principle of law relating to ""proportionality"", the Hon''ble Supreme Court, in Management of Coimbatore District Central
Co-operative Bank v. Secretary, Coimbatore District Central Co-operative Bank Employees'' Association and Anr. 2007 (3) L.L.N.128, has
formulated certain dictums, which the Courts in the country are bound to follow. The gist of the principles contained in the decision of the Hon''ble
Supreme Court is as follows:
""Proportionality"" is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his
priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to
the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise - the elaboration of a rule of
permissible priorities.
De Smith states that ""proportionality"" involves ""balancing test"" and ""necessity test""."" Whereas the former (balancing test) permits scrutiny of
excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test)
requires infringement of human rights to the least restrictive alternative....
In the light of the above discussion and following the above judgments of the Apex Court, we are of the considered opinion that neither the
Labour Court nor the single Judge have appreciated the facts and circumstances of the case in their proper perspective, leading to miscarriage of
justice, thus compelling us to cause our interference to set right the illegality committed. Accordingly, this appeal is allowed and the
appellant/workman is directed to be reinstated into service with continuity of service. However, taking into consideration the long period of
severance of employee-employer relationship between the appellant and the second respondent, we direct the respondent Management to
reinstate the appellant/workman with 50% backwages. No costs.