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Judgment
S. Palanivelu, J.—The appellant management is situated at Mettur, Salem District, engaged in silicon metal (pure) Electronic grade in the form of poly, mone, ingets and waters. It was established in the year 1986 having employed about 61 workmen. The second respondent was employed as a skilled worker in the Instrument Department on December 1, 1985 and was, made permanent on December 1,1986. He was drawing total wages of Rs. 1995/- per mensem.
On June 26, 1992 while the second respondent was in the general shift, one Venkatesan, a trade apprentice was also working in the shift, who is a squint eyed man. When the said Venkatesan was working in the department, after completion of his work at about 4.45 p.m. he placed the level transmitter; under the work table. The Engineering Assistant by name Shankar asked Venkatesan to clean the diaphragm of the transmitter. However, the second respondent advised Venkatesan that the transmitter should not be; placed under the table and asked him to keep the same in the shelf, for which Venkatesan responded by nodding his head. The second respondent once again asked him to do the work. But Venkatesan, in reply, uttered monosyllable word "um. " Again Venkatesan was asked by the second respondent to keep the transmitter in the shelf for which Venkatesan stared at him and he continued to clean the diaphragm. Peeved at this, the second respondent told him that he should not talk with him in that fashion and he further said that if he stared at him, he would thrash him so as to make his eye to turn to other side. Venkatesan took exception to the language. In a moment, the second respondent slapped Venkatesan on his cheek. At that time, the Engineering Assistant Shankar advised him not to behave like this towards an Apprentice. Ignoring his words, the second respondent slapped Venkatesan thrice.
On June 27, 1992 charge sheet came to be issued to the second respondent charging him with misconduct under Standing Order 24 (a.h.). When the Charge sheet was served on the second respondent, he refused to receive it. Another charge memo dated June 27,1992 was also issued for refusal to receive the communication from company under the Standing Order 24 (a.h.). Thereafter, both the charge sheets were displayed on the Notice Board.
The second respondent submitted his explanation and being not content, the Management ordered a domestic enquiry. Three witnesses were examined on behalf of the Management. They are Venkatesan, Sankar and one Sundaresan of Time Office. The second respondent examined himself and did not examine any more witnesses.
After considering the statements of; witnesses, the Enquiry Officer came out with a finding on September 4, 1992 that the charges levelled against the second respondent stood proved. On September 30, 1992 the appellant factory issued a show cause notice stating that inasmuch as the charges framed against him having been proved, he was dismissed from service with effect from November 12, 1992.
In the reference for the above said communication it is mentioned that his previous records were also scrutinised. While it was referred in the body of the communication it is stated that when his previous records were perused, there was no ground to take a lenient view. Worthwhile it is to note, that the nature of the delinquencies allegedly committed by the second respondent and the penalties imposed on him therefore has not been shown. It is as vague as possible. It does not guide the Court to learn about whether there was any previous misconduct on the part of the second respondent and the punishment visited by him.
The Labour Court by its award dated January 2, 1996, after considering the materials on record, has exercised its jurisdiction u/s 11(A) of the Industrial Disputes Act, by passing an award directing the Management to reinstate the second respondent without back wages, but with the continuity of service, opining that the punishment of dismissal from service is not commensurate with the misconduct committed by the workman, that it was sufficient with loss of wages for about 25 months which would work out to Rs. 50,000/- and the said loss could be treated to be proportionate punishment for the delinquency committed by him.
The appellant carried the matter before-this Court by filing W.P. No. 8710/1995 challenging the award passed by the Labour Court by contending that the nature of misconduct of the employee was grave which has caused adverse effect on the maintenance of discipline in the unit, for which the said misconduct ought to be viewed strictly, failing which indiscipline could be encouraged resulting in industrial unrest. It is the contention before the Court by Mr. S. Ravichandran, learned Counsel for the appellant also. It is his further contention that as for the power of Labour Court exercisable u/s 11(A) of the Industrial Disputes Act, it is significantly limited and when once the charges have been found to have been established, the Labour Court has no authority to interfere with quantum of punishment.
Conversely, Mr. Hari Paranthaman, learned Counsel appearing for the second respondent would submit that even though the charges framed against the second respondent were held to have been proved, it could not constitute a ground to award a major punishment of dismissal from service which is shockingly disproportionate and the Labour Court has exercised its discretion in a legal and reasonable way and no interference is called for in the findings of the Labour Court and also of the single Judge.
It is acceptable that in order to maintain a peaceful atmosphere in the establishment concerned, the violent activities on the part of anybody else have to be checked with iron hands so as to bring about the discipline in any industrial unit. If any such violent manner is noticed, the management has got the right to take action against the delinquencies as per the certified standing orders and may deal with them in accordance with settled procedure. Woeful indiscipline in the workplace could not be tolerated, if it leads to unrest and the order of dismissal for the same could not be treated to be unduly harsh or; disproportionate. The Courts shall not be misguided or misdirected while exercising their jurisdiction. Discipline at the workplace in an organisation is a sine qua non for efficient working of the organisation which is expected to prevail. If the indiscipline alleged on the part of the workmen paves way to public breach of the organisation, then it is not open to the Court to hold the punishment of the dismissal awarded to them is shockingly disproportionate to the proven charge.
In the words of "Jack Chan" as their Lordships quoted in Madhya Pradesh Electricity Board Vs. Jagdish Chandra Sharma, , "Discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large."
Both the learned Counsel have argued at length referring to the view point of the Apex Court on this subject. Learned Counsel for the appellant while arguing strenuously, commented upon the power of the Labour Court to interfere with the decision of the Management. He would cite Hombe Gowda Edn. Trust and Another Vs. State of Karnataka and Others, in which the Supreme Court has held as follows at p. 1007 of LLJ:
Assaulting a superior at a workplace amounts to an act of gross indiscipline. The respondent is a teacher. Even under grave provocation a teacher is not expected to abuse the head of the institution in a filthy language and assault him with a chappal. Punishment of dismissal from services, therefore, cannot be said to be wholly disproportionate so as to shock one''s conscience at p. 1007 of LLJ.
In Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, it is held that the industrial Courts could not sit in appeal over the decision of the employer unless mere existed a statutory provision in that behalf, though its jurisdiction is wide, but the same must be applied in terms of the provisions of the constitution and no other.
In Madhya Pradesh Electricity Board Vs. Jagdish Chandra Sharma, , the Honourable Supreme Court while discussing with the jurisdiction exercisable by the Labour Court has observed as under:
It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived at that the punishment was shockingly disproportionate to the nature of the charge found proved, before it could interfere to reduce the punishment.
The Tribunal or the Labour Court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground.
Further the Honourable Supreme Court in the decision J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another, has held thus at p.139 of LLJ:
In this case, we have already found that the charge established against the employee was a serious one. The Labour Court did not record a finding that the punishment was harsh or disproportionately excessive. It interfered with the punishment only on the ground that the employee had worked for four years without giving room for any such complaint. It ignored the seriousness of the misconduct. That was not warranted. The consistent view of this Court is that in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charge established, the Labour Court should not interfere with the punishment. We therefore, hold that the punishment of dismissal did not call for interference.
While the facts of the present case are considered, the Labour Court has given a finding to the effect that there is no necessity for the Management to award major penalty of dismissal and opined that the monetary loss caused to the workmen to the tune of Rs. 50,000/- on account of his suspension would be a sufficient punishment for his proved misconduct. In our considered view, the finding of the Labour Court is sensible which fulfils the requirement of law above stated.
Learned Counsel for the appellant also draws our attention to the decision Tata Engineering and Locomotive Co. Ltd. v. N.K. Singh 2007 1 LLJ 726 where Their Lordships discussed about the case that one Court staff who was assaulted by fists and bricks by means of which he suffered serious injuries and after the domestic enquiry, the delinquent was found guilty of his conduct and was dismissed from service. The Honourable Supreme Court observed that the Labour Court and the High Court have not found that misconduct was of any minor nature. On the contrary, the finding on the facts that the acts complained of were established has not been disturbed. That being so, the leniency shown by the Labour Court is clearly unwarranted and would in fact encourage indiscipline and that without indicating any reason as to why it was felt that the punishment was disproportionate, the Labour Court should not have passed order in the manner done. Coming to the facts of the present case there is no material on record to show that by means of the misconduct there was unrest in the atmosphere in the Management and the Labour Court has clearly indicated the reason as regards the gravity of punishment. It is to be noted that Venkatesan did not receive any injuries at all.
The attention of this Court was also drawn to the another decision of the Honourable Supreme Court in U.B. Gadhe and Ors. v. General Manager, Gujarat Ambuja Cement (Private) Ltd. 2008 1 LLJ-156 : (2007) 4 LLN 560 in which it is held that when the workmen who were dismissed for resorting to cessation of work, strike, disorderly behaviour, demonstration, committing nuisance, etc., that too in a public utility service, they have to be dealt with seriously when the charges have been proved in the enquiry and the Labour Court or the High Court should not extend misplaced sympathy in order to vary the punishment, as imposed by the employer and the modification should not be done in a casual manner. As for the case on hand, there is no such alarming or critical circumstance so as to make the Court alert to the situation to put an end to the disorderly activities. In the abovesaid decision, the Apex Court has also observed that expansive judicial mood of mistaken and; misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situation and denude the judicial process of its dignity, authority, predictability and respectability.
In Senapathy Whiteley Ltd. v. Karadi Gowda and Anr. 2000 I LLJ-273 it is held that, it is well settled that the powers of the Labour Court u/s 11-A are wide and that it is open to the High Court in justifiable cases to modify the order of the Labour Court and in lieu of the reinstatement, the payment of a sum of Rs. 2.50 lakhs to the workman will be paid within two months.
In yet another case State Rank of Haryana v. Devi Dutt and Ors. 2007 1 LLJ 569 Honourable Supreme Court has reiterated the legal principles already settled by the Court by holding as follows at p. 570 of LLJ:
The High Court ordinarily should not have interfered with the said finding of fact. We, although, do not mean to suggest that the findings of fact cannot be interfered with by the Superior Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, but the same should be done upon application of the well known legal principles such as : (1) when it is perverse; (2) when wrong legal principles have been applied (3) when wrong questions were posed; (4) when relevant facts have not been taken into consideration, or (5) the findings have been arrived at on the basis of the irrelevant facts or on extraneous consideration.
As far as the dictum laid down by the Supreme Court is concerned, the Court has not definitely held that the finding of the enquiry officer was perverse with reference to the misconduct committed. But in the present case, while considering the propriety of the punishment, the Labour Court has fairly decided for reinstatement without back wages, with continuity of service.
The main plank of the learned Counsel for the appellant is that in case, if the second respondent is inducted into service again, it would certainly create chaos in the peaceful climate of the establishment and that it was already expressed that any sum could be paid to him in lieu of his reinstatement. Even though the submission as regards the payment of money appears to be reasonable, still the well settled principles have to be followed while dealing about the proportionality of the penalty awarded. As already stated there is no material to show that because of incident, the atmosphere in the factory got spoiled.
Mr. Hariparanthaman, learned Counsel for the respondent would argue, citing the authorities of the Supreme Court wherein the legal principles have been formulated in the matter of taking lenient view in the case involving misconduct of the workmen in Scooter India Ltd., Lucknow v. Labour Court, Lucknow and Ors. 1989 I LLJ 71 the operative portion is found as under at p. 73 of LLJ:
The Labour Court was not unaware of the nature of the charges, or the findings rendered by the enquiry officer and the acceptance of those findings by the Disciplinary Authority. Considering all the circumstances, it came to the conclusion that the ends of justice would be met if back wages to the extent of 75 percent were allowed to the workman. It cannot be, therefore, be said that the Labour Court has exceeded its powers u/s 6(2A) in an arbitrary manner. It has tempered justice with mercy by giving an opportunity to the erring workman to prove himself to be a reformed and disciplined employee of the petitioner-company.
In the above said case the charges against the workman were pertaining to the act of major misconduct and as many as three charge memos were issued to him which were proved as per the report of the finding of the enquiry officer.
The Apex Court held in Palghat BPL & PSP Thozhilali Union v. BPL India Ltd. and Anr. 1996 2 LLJ 335 thus at p. 337 of LLJ:
In this case, the finding recorded by the High Court and the Labour Court is that stones were thrown and the officers were'' attacked which resulted in grievous injuries to the officers. But it is seen that the appellants alone were not members of the assembly of the workmen standing at the BPL Bus Stop. The Labour Court had discretion u/s 11-A of the Industrial Disputes Act to consider the quantum of misconduct and the punishment. In view of the surging circumstances, viz., the workmen were agitating by their; collective bargain for acceptance of their demands and when the strike was on, the settlement during the conciliation proceedings, though initially agreed to, was raised later on. They appear to have attacked the officers when they were going to the Factory. Under these circumstances the Labour Court was well justified in taking lenient view and in setting aside the order of dismissal and giving direction to reinstate the workmen with a cut of 75% of the back wages upto the date of award. In our considered view, the discretion exercised by the Labour Court is proper and justified in the above facts and circumstances. The High Court had not adverted to these aspects of the matter. It merely had gone into the question whether the act complained of is a misconduct.
In the said case the workmen have agitated and proceeded to attack the officers when they were going to the factory and the Labour Court took a lenient view of setting aside the dismissal order and directed reinstatement of the employees with 25% of back wages. The said view was confirmed by the Supreme Court.
Learned Counsel for the Second Respondent also placed reliance upon another decision Kanhaiyalal Agrawal and Others Vs. The Factory Manager and others, in which it is held as under at p. 1242 of LLJ:
Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the Labour Court has been reversed in appeal by the Industrial Court on unreasonable grounds. What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on the ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the management. Objective facts which would be lead to a definite inference of apprehension in the mind of the management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost.
If the three tests formulated by the Apex Court were passed, then the Court is justified to vary from the findings and the proportionality of the punishment. As far as the present case is concerned, the Court could justify the reasons of the Labour Court for the reason that it has satisfied the requirements contained in the above three tests.
In support of his contention learned Counsel for the appellant cited the decision rendered by this Court in Tractors and Farm Equipment Ltd., Madras v. R. Venkataraman and Anr. (1990) 1 LLN 770 in which it is held as follows:
The well-accepted principle on the question of exercise of powers u/s 11-A of the Industrial Disputes Act, 1947, to evaluate the gravity of misconduct for the purpose of the punishment to be imposed on a workman is, that once that power has been exercised, the High Court under Article 226 of the Constitution of India, in the absence of any important legal principle, should not undertake to re-examine the question of adequacy or inadequacy of the materials for interference by Labour Courts.
The competency of this Court under Article 226 of the Constitution of India was discussed by this Court in the above said decision after referring to the well settled legal principles. Following the ratio laid down by the Supreme Court, and in the considered view of this Court as well, it is to be resolved that the Labour Court has properly appreciated the circumstance and decided the case as per the power exercisable u/s 11-A of the industrial Disputes Act and in view of the legal position, if the Court intends to interfere with the decision of Labour Court, certain conditions are to be fulfilled. In our opinion, the decision of the Labour Court has conformed to the statutory prescriptions in this regard and there is no reason to interfere with the same. In this context, the outcome reached by the learned single Judge is appropriate and there is no circumstance to disturb the finding.
We have bestowed our careful attention to the attending circumstances, of this case and followed the legal principles laid down by the Supreme Court and arrived at a conclusion that the dismissal order would not stand for legal scrutiny which deserves to be set aside.
We find no reason to interfere with the finding & of the Labour Court and no necessity to differ from the decision of the learned single Judge. The appeal suffers dismissal.
In fine, writ appeal is dismissed consequently, connected M.P. is also dismissed.