Management of Terrace Estate vs Presiding Officer, Labour Court and Another

V. Kanagaraj, J.—The petitioner viz., The Management of Terrace Estate located at the Nilgiris, has filed the above two writ petitions

against the proceedings of the Labour Court as the first respondent in both the writ petitions and against one Gopal as the second respondent in the

former and Gurujavaran as the second respondent in the latter writ petitions, thereby praying to issue a writ of certiorari to call for the records of

the first respondent Labour Court respectively made in I.D. Nos. 302 and 328 of 1986 dated May 20, 1991 and to quash, the same.

Heard the learned Counsel appearing for the petitioner and the respondents as well.

The affidavit filed in support of the writ petitions are identical rather the same, excepting for certain individual particulars since the whole affair

arises from out of one and the same delinquency committed by both the second respondent in the above writ petitions, but since separate awards

have been passed by the first respondent Labour Court under different industrial dispute proceedings, the petitioner has come forward to file two

writ petitions. Considering the facts and circumstances and the position of law encircling the subject matter of both the writ petitions since being

one and the same, a common order is hereby passed. For the sake of convenience, W.P. No. 15753 of 1991 is addressed as the first writ petition

and W.P. No. 15754 of 1991 is addressed as the second writ petition.

From the affidavit filed in support of the writ petitions, what conies to be known is that the petitioner is a Tea Plantation Estate located in an

extent of 806 acres and the same is governed by the provisions of Plantation Labour Act; that it employs about 300 workmen; that it is located at

a distance of 35 kms. from Ooty; that it has a small hospital for attending the ailing patients consisting of a compounder, an assistant, and a

midwife; that the workmen of the estate and their dependent children upto the age of 18 are provided medical treatment and medicines free of

charge; that the staff and the labour are provided quarters in the estate premises; that the petitioner has also permitted private shops to be run for

the benefit of its employees; that whenever the visiting Doctor feels that the patient should be sent to the Government Hospital, Ooty, the

compounder used to send a requisition to the estate office mentioning the names of the workmen; that the estate office used to arrange for

transport of the patient and also meet the expenses for taking treatment in the Government Hospital, Ooty.

The further case of the petitioner is that on May 27, 1982 at about 5.30 p.m., the second respondents in both the writ petitions entered the

estate office carrying two patients who were outsiders, in a blanket cradle and placed the patients near the Manager''s room and they shouted

against the estate staff Balakrishnan abusing them in filthy language and they also cautioned the said Balakrishnan that he should look after the two

patients and he should watch them throughout the night. At about 8 p.m., they locked the office from inside and left the office through the factory

door. At about 8.15 p.m. that day, both the second respondents went to the residence of another estate staff viz., Rajan and threatened him that

since he did not take care of the patients, he should forget about his wife and children and on the next day he would be in jail.

The same day at about 8.30 p.m., both the second respondents went to the house of the Accountant one K. Lakshmanan and abused him for

having not attended to the patients as a result of which, the said Lakshmanan bolted the door from inside. Then they both went towards the

Manager''s bungalow at about 8.40 p.m. and accosted the field conductor T. Lakshmanan and the shop and questioned Lakshmanan as to why he

had not made any arrangement to take the two patients to the Ooty Hospital and spoke to him in an insolent manner. In the course of the same

transaction, the second respondent in the second writ petition, intimidated him that if anything happened to the said patients, then their head would

roll. Again at about 11 p.m., the second respondents in both the writ petitions approached the said T. Lakshmanan and shouted at him regarding

the same affair.

It is the case of the petitioner that for the above delinquencies, both the second respondents were served with four charges, the first charge

relating to their misbehaviour towards Balakrishnan, the Office Assistant at 5.30 p.m., the second charge relating to their insolent behaviour

towards Rajan, the third charge relating to the incident in the house of K. Lakshmanan, Accountant and the fourth charge dealing with the incident

that occurred on the road when both Balakrishnan and Lakshmanan were abused; that four separate enquiries were held against both the second

respondents in which they both availing opportunity, participated in all the enquiries and that the enquiry officer gave separate finding in all the four

enquiries holding that the charges against the second respondents were proved; that on the basis of the findings of the enquiry officer, orders were

passed on October 26, 1982 dismissing both the second respondents from service.

The further case of the petitioner is that both the second respondents raised industrial disputes challenging their dismissal from service; that on

the failure of conciliation, the disputes were referred to the first respondent for adjudication. Taking the dispute concerned with the first writ petition

in I.D. No. 302 of 1986 and the other dispute concerned with the second writ petition in I.D. No. 328 of 1986, the first respondent Labour Court

tried them together in the said proceedings wherein documents filed on the part of the petitioner which were marked as Exs. M-1 to M-28 and the

documents filed on the part of both the workmen were marked as Exs. W-1 to W-64.

In consideration of the materials placed on record, the first respondent passed a common award dated May 20, 1991 in I.D. Nos. 302 and 328

of 1986 holding that the domestic enquiry held into the charges against the second respondents in both the writ petitions were not justifiable; that

beyond office hours, the workmen intimidated the estate staff and the other workmen and they have acted insolently towards Balakrishnan, Rajan,

K. Lakshmanan and T. Lakshmanan thus recording a positive finding that both the second respondents needlessly created problem to the four staff

and abused them in filthy language and holding that the charges against the two workmen were proved. But considering the propriety of

punishment, the first respondent stating that the incidents had taken place beyond office hours and outside the estate office ultimately held that the

punishment of dismissal awarded to the two workmen was not justified and purporting to exercise his jurisdiction u/s 11A of the Industrial Disputes

Act, ordered reinstatement of the two workmen with 25 pr cent backwages and with continuity of service. It is only testifying the validity of the

said orders passed by the first respondent, Labour Court; the petitioner Management has come forward to file the above two writ petitions on

certain grounds as brought forth in the writ petitions.

During arguments, the learned counsel appearing for the petitioner would contend that a preliminary enquiry was held into the charges and the

management held two charges proved, viz. (i) that the second respondents brought and left non-worker patients at the office itself, and (ii) that they

abused the management staff viz., K.. Rajan, K. Lakshmanan, Balakrishnan, T. Lakshmanan and threatened them using vulgar language; that the

domestic enquiry was held on the disorderly behaviour exhibited on the part of the second respondent that the Labour Court held that the domestic

enquiry was properly held and the disciplinary authority in holding the charges proved was also proper, but the Labour Court interfered with u/s

11A and ordered reinstatement of the second respondent in service with 25 per cent of the backwages which is only being resented to and this

part of the order of the Labour Court is only forming part of the case of the writ petitioners.

The learned Counsel would further argue that having accepted what had been held by the disciplinary authority to be absolutely proper, but

having gone against the punishment awarded by the disciplinary authority, the Labour Court has erred and the reasons assigned on the part of the

Labour Court is neither sustainable nor convincing and hence would pray for the order of dismissal to be upheld thus setting aside the order of

reinstatement with 25 per cent backwages as ordered by the Labour Court.

The learned counsel would cite two Judgments the first one delivered in Engine Valves Ltd. Vs. Labour Court, Madras and another, wherein

the scope of interference u/s 11A of the Industrial Disputes Act is specified by the Division Bench. In consideration of various Judgments

particularly in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, wherein the following

principles are summarised regarding the scope of interference by the tribunal prior to the introduction of Section 11A of the Act, they are:

(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred

to a Tribunal, the latter has power to see if action of the employer is justified.

(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing

Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion following from the evidence

adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body; that

interference with the decisions of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is

guilty of victimisation, unfair labour practice or mala fides.

(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal, in order to satisfy itself

about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the

employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On

the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the

evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of

managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken, only if no enquiry has

been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged

employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action,

should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to

an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employer and to enable the

Tribunal itself to be satisfied about the alleged misconduct.

(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time,

punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this

Court in The Management of Panitole Tea Estate Vs. The Workmen, within the judicial decision of a Labour Court or Tribunal.

The decision of this Court in Madras Fertilisers case, 1990 I L.L.J. 477, relied upon by the learned Counsel for the respondents, only lays

down that where the Labour Court had not made a proper exercise of the discretion vested in it u/s 11A of the Act, this Court in the exercise of its

powers under Art. 227 of the Constitution of India can certainly do what the Labour Court failed to do. Having regard to the principles referred to

above, we are of the view that the power and discretion conferred u/s 11A of the Act have to be exercised judicially and that there should be

sufficient indication in the order itself of the fact that the Court exercising powers u/s 11A of the Act was aware of and alive to the norms and

requirements of Section 11A of the Act. The Court exercising powers under Sectiion 11A of the Act after finding the misconduct to have been

proved is first obliged to advert itself to the question of necessity or desirability to interfere with the punishment imposed by the management and, if

the management could not justify the punishment imposed thereafter, it must consider the question as to the relief that is to be granted to the

employee.

... A specific finding must be recorded whether it was expedient and proper to reinstate the employee or whether award of compensation in lieu of

reinstatement will meet the requirement and ends of justice of the case concerned. Absence of reasons to invoke the power and interfere under the

provisions of Section 11A in a particular case would render the very exercise of powers arbitrary and perverse and the order consequently would

stand vitiated.

The other judgment cited by the learned Co.unsel is one delivered in Dharmapuri District Co-operative Sugar Mills Vs. The Presiding Officer,

Labour Court, Vellore and another, wherein it is held:

On analysis of the above judgments the position that emerges is that the Court should not entertain a misplaced sympathy towards a workman and

should not prejudice the issue from the angle of rehabilitation. The question of rehabilitation and reformation could arise in a case of minor

delinquency or misconduct. Where the charges are grave in nature, can the Labour Court exercising power u/s 11A of the Act impose on a

management a workman whose presence is likely to affect the morale and discipline of the entire factory? Should the management be embarrassed

by the reinstatement of such a workman by denying the managerial function to which a management is entitled to, having regard to the facts and

circumstances of the case. In our opinion, the acceptance of such a proposition would only lead to interfering with the managerial functions to the

extent of destroying the discipline and control in the entire factory. We are clearly of the opinion that Section 11A of the Act is not intended to

embarrass the management to such extent. Section 11A of the Act was introduced to obviate the difficulty felt by the Labour Courts, Tribunals,

etc. in modifying the judgments of discharge or dismissal on flimsy grounds solely with a view to render justice to the parties. The Labour Courts

and Tribunals cannot mechanically use the words ""the punishment being disproportionate to the charges"". As observed by the Supreme Court of

India unless the Labour Court finds the punishment to be highly disproportionate to the charges, the Labour Court should not interfere. One other

aspect of the case may also be noticed before dealing with the judgments cited by Sri N.G.R. Prasad. On the facts of this case, the Labour Court

had set aside the domestic enquiry and proceeded to take evidence. On the evidence the Labour Court has rendered certain findings, to which we

have already made a reference. Having found the second respondent guilty of the charges, while exercising the function of imposing a punishment,

the Labour Court is in fact in the position of management and the sentiments expressed by the management, when they terminated the services of

the second respondent have to be kept in mind and we do not think that different principles will apply to the Labour Court while determining the

punishment to be awarded to the guilty worker.

Even in the case in hand if studied in the light of the principles evolved in the above judgments, it would be seen that the Labour Court has

neither exercised its discretion in an unreasonable or arbitrary manner, nor with a misplaced sympathy over the workman, but on ground that the

punishment of dismissal was quite disproportionate to the gravity of the charge and the offence proved thereby necessitating the first respondent

Labour Court to interfere with the order of punishment of disciplinary authority. The Labour Court in its order has also assigned valid reasons for

interfering with the punishment awarded by the disciplinary authority.

After all, the acts admittedly exhibited on the part of the second respondents in both the writ petitions have not even been reported against with

the concerned police authorities since being so minor where no assault or injury to any person or even deliberately refusing to work which they are

bound to do or insubordination in violation of rules have been reported against. Since the staff members and the other authorities of the petitioner

management have been either lethargic or reluctant to act in referring two sick persons brought by the second respondents to the Ooty

Government Hospital which is quite evident from the case of the prosecution itself and under such acts of negligence deliberately exhibited on the

part of the estate authorities and staff, it is quite natural that the second respondents would have become flared up and acted in the manner that

came to be proved against the workmen which would not definitely warrant a punishment of dismissal from service. The acts complained of as per

the charge memo that came to be proved and the punishment of dismissal have absolutely no parity or nexus and hence the first respondent Labour

Court had rightly thought of exercising its discretion to interfere with the punishment in spite of having agreed with the findings arrived at holding the

charges proved against the second respondents.

True, it is only the judicial discretion that is conferred on any authority known to law and nothing else. Hence, such discretionary powers are

expected to be exercised in a judicious manner and sparingly in the right direction whenever it is required and wherever it is necessarily to be

exercised depending upon the circumstances of individual cases. If the authority who is empowered with such discretionary powers, does not

exercise the same in the expected manner and to the extent and in the manner required under circumstances, but exercised the same in such

manner where he is not required to interfere with or refrains from exercising such discretionary powers, where it is incumbent on him to be

exercised then it would become either an arbitrary exercise of such power or would end up as wilful negligence in not exercising such statutory

assigned powers in the right direction.

So far as the case in hand is concerned, the first respondent Labour Court has rightly exercised its power of discretion enshrined u/s 11A of

the Industrial Disputes Act and there is no iota of doubt to be entertained with regard to the genuineness of his exercising such discretion and what

has been arrived at by the Labour Court in so far as the punishment is concerned, is a well considered and well merited one and, I am not able to

see any patent error or perversity in approach so as to call for interference by this Court. In these circumstances, this case very well falls within the

scope and norms of the judgments referred to above and hence I have no hesitation to accept the verdict of the Labour Court in the entirety.

In result, there is no merit in the above two writ petitions which fail and consequently they are dismissed.

However, in the circumstances of the case, there shall be no order as to costs.