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Judgment
Somasundaram, J.—Both these writ appeals arise out of the dispute referred to the Labour Court, Madras, in I.D. No. 22 of 1991, for
adjudication between the management of Lucas India Service Ltd., Madras, and its employee one Syed Mazharuddin. For the sake of
convenience, they will be referred to as ""the management"" and ""the employee"", respectively, in the course of this judgment. The appellant, in W.A.
No. 1372 of 1993, is the management and the appellant, in W.A. No. 432 of 1994, is the employee. As the parties and the points involved in both
the writ appeals are common, they are disposed of by this common judgment.
The employee joined the services of the management at Madras and was transferred to Bangalore by order dated November 26, 1984. The
order was to take effect from January 2, 1985. The employee without obeying the said order of transfer challenged it in the civil court by filing
O.S. No. 121 of 1985, on the file of the City Civil Court, Madras. The said suit was dismissed on October 3, 1985. Thereafter, the employee was
asked to show cause as to why action should not be taken against him for disobeying the order of transfer. By a letter dated November 5, 1985,
the employee was asked to report at Bangalore, within ten days from the date of receipt of the letter and also to submit his explanation for the
show-cause notice. The employee sent a reply on November 18, 1985, stating that he was not able to report at Bangalore, due to his peculiar
family circumstances. Thereafter, the management proceeded to conduct an enquiry through a retired District Judge. After conducting the enquiry,
the enquiry officer submitted his findings on January 4, 1986, holding that the charges framed against the employee have been proved. Thereafter,
a second show case notice was sent to the employee on January 20, 1986. After getting the explanation from the employee, the management, by
their order dated December 28, 1986, dismissed the employee from their service. In the above circumstances, an industrial dispute was raised and
it was referred to the Labour Court Madras, and it was taken on file as I.D. No. 22 of 1991. Before the Labour Court, the parties have
proceeded only on the question whether the non-consideration of the past record of service of the employee would vitiate the disciplinary
proceedings and the order of dismissal and whether the punishment of dismissal imposed on the employee was disproportionate to the gravity of
the misconduct alleged against the employee. The Labour Court, on a consideration of the evidence on record, came to the conclusion that the
dismissal of the employee from service cannot be said to be erroneous. However, the Labour Court found that the employee did not join service at
Bangalore only because of his family circumstances. The Labour Court also found that the management should not have dismissed the employee
from service without giving him any monetary benefit. Consequently, the Labour Court passed an award on May 19, 1992, holding that the order
of dismissal dated February 28, 1986, passed by the management, dismissing the employee from their service is correct. However, the Labour
Court found that the order of dismissal dated February 28, 1986, passed by the management without giving any monetary benefit to the employee
is not correct. Consequently, the Labour Court directed the management to pay the salary with attendant benfits to the employee from the date of
dismissal, namely, February 28, 1986, till the date of the award of the Labour Court.
Aggrieved by the award of the Labour Court, directing the management to pay the salary of the employee from the date of his dismissal to the
date of the award of the Labour Court, the management filed W. P. No. 11799 of 1992. On the other hand, the employee, aggrieved by the
award of the Labour Court, holding that the order of dismissal dated February 28, 1986, passed by the management is correct, filed Writ Petition
No. 20108 of 1992.
Srinivasan, J., who heard Writ Petition No. 20108 of 1992 filed by the employee, repelling his contention that his past record of service was not
taken into account before the management passed the order of dismissal, dismissed the said writ petition. W.A. No 432 of 1994 is directed against
the order of Srinivansan, J., in Writ Petition No. 20108 of 1992. Kanakaraj, J., who heard W.P. No. 11799 of 1992 filed by the management, by
order dated August 5, 1993, set aside the award of the Labour Court and remitted the matter to the disciplinary authority, directing the disciplinary
authority to continue the disciplinary proceedings afresh from the stage of the second show-cause notice. As already stated, aggrieved by the said
order in W.P. No. 11799 of 1992, the management has tiled W.A. No. 1372 of 1993.
Before us, Mr. T. Fenn Walter, learned counsel for the employee, submitted that inasmuch as the management has failed to take into account
the past record of service of the employee at the time of passing of the order of dismissal, the order of dismissal dated February 28, 1986, is
invalid and that the learned single judge, who heard Writ Petition No. 20108 of 1992 is not at all justified in coming to the conclusion that the
management had taken into consideration the past record of service of the employee before passing the order of dismissal dated February 28,
1986. Learned counsel for the employee further contended that the employee has never suffered even a minor punishment and, therefore, the
extreme punishment of dismissal from service awarded to the employee is disproportionate to the misconduct proved against the employee and
that the Labour Court and the learned single judge, who heard W.P. No. 20108 of 1992, are not justified in holding that the punishment imposed
by the management on the employee is just and proper. Per contra, Mrs. Bhagirathi Narayanan, learned counsel for the management, submitted
that the past record of service of the employee was taken into account by the management before passing the order of dismissal dated February
28, 1986, and that as a matter of fact that there is a reference to the past record of service in the second show-cause notice dated January 20,
1986, issued to the employee proposing the punishment and, therefore, there is no infirmity in the finding of the Labour Court and the learned single
judge, who heard W.P. No. 20108 of 1992 that the past record of service was taken into account by the management while passing the order of
dismissal dated December 28, 1986. Learned counsel for the management further contended that since the employee failed to obey the order of
transfer even though three opportunities were given to the employee to obey the same, punishment of dismissal from service imposed on the
employee is just and proper.
In the light of the rival contentions of learned counsel for the parties, the following points arise for consideration in these writ appeals:
Whether the past record of service of the employee was taken into account by the management before it passed the order dated February 28,
1986, dismissing the employee from service?
Whether the punishment of dismissal from service imposed by the management on the employee is just and proper and such a punishment is
called for on the facts and circumstances of the case?
To what relief, if any, the employee is entitled?
Point No. 1 : With regard to this point, Mr. T. Fenn Walter, learned counsel for the employee, vehemently contended that the past record of
service of the employee was not at all taken into account by the management before it passed the order dated February 28, 1986, dismissing the
employee from service. Learned counsel also submitted that the employee has never suffered even a minor punishment and hence it is an
extenuating factor for consideration by the management while awarding punishment and that the management has not at all taken into account any
extenuating factor and the past record of service of the employee before passing the order of dismissal against him. In support of his contention,
learned counsel for the employee relied on a decision of a Division Bench of this Court in The Management of Mahalakshmi Textile Mills Vs. The
Presiding Officer, Labour Court and Others, . We are unable to accept the above contention of learned counsel for the employee. The
management, after issuing a show-cause notice, appointed an enquiry officer to enquiry into the charges framed against the employee. The enquiry
officer, after conducting an enquiry, submitted a report to the management holding that the charges against the employee have been proved. After
receiving the report of the enquiry officer, the disciplinary authority accepted the findings of the enquiry officer and issued a second show-cause
notice dated January 20, 1986, to the employee, proposing to impose the punishment of dismissal from service. In the said second show-cause
notice dated January 20, 1986, the management has specifically stated that a perusal of the past record of service of the employee also does not
lend any support to the case of the employee. Thus, it is clear that the past record of service of the employee was taken into account by the
management even while proposing the punishment of dismissal from service. In Engine Valves Ltd v. Labour Court, Madras, 1991 I LLJ 312, a
Division Bench of this Court has held that reference to previous record in the order of punishment constitutes sufficient compliance with the
requirement of law on this aspect. In view of the above factual and the legal position, we are clearly of the view that the reference to the past
record of service of the employee in the second show-cause notice dated January 20, 1986, issued by the management to the employee
constitutes sufficient compliance with the requirements of law and that the management in the present case has taken into account the past record
of service of the employee before passing the order dated February 28, 1986, dismissing the employee from service. The principles laid down by
the Division Bench of this court in Mahalakshmi Textile Mills v. Labour Court, Madurai, (supra), have no application to the facts of the present
case in view of our finding that the management has taken into account the past record of service of the employee before passing the order of
punishment. In these circumstances, we have no hesitation in holding that the past record of service of the employee was taken into account by the
management before it passed the order dated February 28, 1986, dismissing the employee from service. Point No. 1 is answered accordingly.
Point No. 2 : The contention of learned counsel for the employee is that the extreme punishment of dismissal from service imposed on the
employee is not warranted by the facts and cir-cumstances of the present case and it is disproportionate to the gravity of the misconduct alleged
against the employee. There is no merit in this contention of Mr. T. Fenn Walter. The order of transfer was made by the management on
November 26, 1984, transferring the employee to the Bangalore sub-branch and he was directed to report for working at Bangalore sub-branch
on January 2, 1985, The employee failed to join his post at Bangalore on January 2, 1985. By letter dated October 14, 1985, the employee was
asked to show cause as to why action should not be taken against him for disobeying the order of transfer. By that letter, he was also directed to
report for work at Bangalore immediately. The employee did not comply with this request of the management also. Again, by a further letter dated
November 5, 1985, the employee was again asked to report at Bangalore within ten days from the date of receipt of the letter and also submit his
exmplantation for the show-cause notice already issued. When the employee refused to obey the order of transfer, the management framed
charges against the employee and initiated disciplinary proceedings by appointing an enquiry officer to enquire into the charges framed against the
employee. The enquiry officer, after conducting the enquiry, submitted a report to the management stating that the charges framed against the
employee have been proved. Thereafter, the disciplinary authority accepting the findings of the enquiry officer issued a second show-cause notice
to the employee proposing the punishment of dismissal from service and requiring the employee to submit his reply to the second show- cause
notice. After getting the reply to the second show-cause notice from the employee, the management by letter dated February 8, 1986, gave
another opportunity to the employee to report for work at Bangalore in compliance with the transfer order, the employee was also informed by
that letter dated February 8, 1986, that if he failed to report for work at Bangalore on or before February 22, 1986, the said letter would be
treated as the order of dismissal. Only when the employee failed to avail of the opportunity given to him by the management to comply with the
transfer order, the disciplinary authority passed the order dated February 28, 1986, dismissing the employee from service. Taking into
consideration the fact that the employee had refused to join service in spite of the three opportunities given to him, the Labour Court and the
learned Single Judge, who disposed of W.P. No. 20108 of 1992 rightly upheld the order of termination of service. In these circumstances, we are
of the view that the punishment of dismissal from service imposed on the employee is just and proper. Point No. 2 is answered accordingly.
The learned Single Judge, who disposed of W. P. No. 11799 of 1992, set aside the award of the Labour Court and remitted the matter to the
disciplinary authority with a direction to the disciplinary authority to issue a fresh second show-cause notice after taking note of the past conduct of
the second respondent and then decide on the proper punishment to be imposed on the employee. The learned Single Judge while doing so
proceeded on the erroneous basis that the past record of service of the employee was not taken into account by the disciplinary authority before
passing the order dismissing the employee from service. We have already held that the disciplinary authority has taken into consideration the past
record of service of the employee even before issuing the second show-cause notice dated January 20, 1986, proposing the punishment of
dismissal from service. In these circumstances, we are obliged to interfere with the order of the learned single judge in W. P. No. 11799 of 1992
and accordingly we allow W. A. No. 1372 of 1993 and set aside the order of the learned Single Judge in W. P. No. 11799 of 1992.
Point No. 3 : The Labour Court, by the award dated May 19, 1992, while upholding the order of the disciplinary authority dismissing the
employee from service, took into consideration the plea of the employee that he was not able to report to duty at the Bangalore office and comply
with the order of transfer due to his family circumstances and the further fact that the employee was always ready and willing to work at the
Madras office and held that the services of the employee cannot be terminated without giving monetary compensation to the employee and
consequently directed the management to pay the employee the salary from the date of his dismissal from service, namely, February 28, 1986, till
the date of the award, namely, May 19, 1992. When the order of termination of service of an employee is upheld by the Labour Court, ordinarily
such an employee will not be entitled to any salary for the period subsequent to the order of dismissal. However, the Labour Court taking into
consideration the facts and circumstances of the case, particularly the peculiar family difficulties expressed by the employee in his reply dated
November 18, 1985, for not reporting to duty in the Bangalore office, pursuant to the order of transfer and the further fact that the employee was
not given work in the Madras office even though he was always willing to work in the Madras office during the pendency of the proceedings
before the Labour Court, rightly directed the management to pay the salary to the employee for the period from the date of his dismissal from
service til! the date of the award of the Labour Court.
Even if we have to take a view that the punishment of dismissal from service is not warranted in the facts and circumstances of the case, this is
not a case in which reinstatement of the employee is warranted. Here is an employee whose services are transferable but nevertheless he is not
prepared to obey the order of transfer, even though several opportunities were given to him to obey the order of transfer and thereby avoid
dismissal from service. Reinstatement of such employees will be nothing but adding trouble to the management and will encourage such employee
to become more and more insubordinate or rebellious and at the same time it will create indiscipline among the other employee. Further, more than
10 years have elapsed. The employee appears to have been misguided in not obeying the order of transfer and the dismissal of the employee from
service would affect his family members adversely. Therefore, taking into consideration these circumstances, we are of the view that the award
need not be interfered with, as the amount directed to be paid to the employee by calculating it on the basis of the wages payable for the period
from February 28, 1986, to May 19, 1992, can very well be treated as compensation for denying reinstatement. The amount so calculated would
be a very handsome amount, which would enable the employee to start his career afresh.
Though the direction issued by the Tribunal to the management to pay the employee the salary from the date of his dismissal from service, namely,
February 28, 1986, til! the date of award namely, May 19, 1992, even after upholding the dismissal of the employee from service, is incongruous
and inconsistent, however, for the reasons stated above, we consider that in the facts and circumstances of the case, the award need not be
interfered with.
For all the reasons stated above we see no infirmity in the award of the Labour Court and the order of the learned single judge in W.P. No.
20108 of 1992, and. therefore, W.A. No. 432 of 1994, filed by the employee is liable to be dismissed.
In the result, we pass the following order in these writ appeals: (a) the award of the Labour Court dated May 19, 1992, in I.D. No. 22 of 1991
is confirmed; (b) the order of the learned judge in W.P. No. 11799 of 1992 remitting the matter to the disciplinary authority for fresh disposal is set
aside and to that extent W.A. No. 1372 of 1993 is allowed; (c) W.P. No. 11799 of 1992 is dismissed; and (d) W.A. No. 432/1994 is dismissed.
There will be no orders to costs.