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Judgment
Honorable Mr. Justice K. Chandru
The first writ petition (W.P. No. 22849/2009) is filed by the Management of Neyveli Lignite Corporation (for short NLC) against the Award
made by Central Government Industrial Tribunal cum Labor Court (for short CGIT) made in I.D. No. 82 of 2006 dated 05.08.2009. By the
impugned Award, the CGIT directed reinstatement of the first respondent workman with 25% of the back wages, continuity of service and other
attendant benefits and the balance 75% of back wages shall be treated as punishment.
That writ petition was admitted on 09.11.2009. Pending the writ petition, this Court granted an interim stay on condition that the petitioner
Corporation deposits 25% of the back wages to the credit of the I.D. No. 82 of 2006. It is submitted by the learned counsel for the Management
that pursuant to the direction issued by this Court, they had deposited Rs. 1,93,622/- with the CGIT and a memo dated 04.12.2009 to that effect
was also filed. The contesting respondent filed M.P.Nos.1 and 2 of 2010 seeking to vacate the interim stay as well as a direction for payment of
last drawn wages in terms of Section 17-B of the I.D. Act. In M.P. No. 2 of 2010, by an order dated 15.07.2010, a direction was issued to pay
the last drawn wages in terms of Section 17-B of the I.D. Act. In the application for stay, no orders were passed. However in M.P. No. 1 of
2009, by an order dated 12.03.2010, this Court permitted the workman to withdraw 50% of the amount deposited and the interim stay was made
absolute.
In the mean while, the workman has filed a cross writ petition being W.P. No. 17436 of 2011 challenging that portion of the Award depriving
75% of the back wages. When that writ petition came up for admission, the earlier writ petition was directed to be clubbed along with this writ
petition so that the maters can be heard together and notice was given to the learned Standing Counsel for the NLC.
For the sake of convenience, parties are referred to as workman and Management as the case may be.
Heard the arguments of Mr. V. Ajay Khose, learned counsel for the workman and Mr. N.A.K. Sarma, learned counsel for NLC.
The facts leading to the passing of the impugned Award are as follows:-
The workman entered the services of NLC as an Industrial Casual Worker on 29.07.1980. His services were regularized in the post of Industrial
Worker, Grade II on 01.02.1981. Thereafter, he was promoted as Industrial Worker, Grade I on 01.02.1987 and as an Operator on
15.07.1987. Again he was promoted as Operator, Grade IV on 01.08.1988. Subsequently, during the years 1992, 1993 and 1998, he was
promoted as Operator Grade III-C, Operator Grade II-B and Operator Grade I-A respectively. He had put in 23 years of service with the
Management. His shift in-charge, in which the workman was employed was not friendly to his subordinates and he always used to deny the lawful
attendance, incentive and Overtime to the workman. He used to allot difficult and complicated work to the workman. When he sought for half a
day leave on 01.10.2000, he was denied leave though he had leave to his credit. On 02.10.2010, the workman was on leave. When he went to
the factory on that day to complain about unjust denial of leave, he was forcibly taken to the Government Hospital and subjected to medical
examination. After the medical examination, he was asked to go home. Thereafter, the workman was placed under suspension on 03.10.2000 and
a charge memo was issued on 18.10.2000.
The charges alleged against the workman were that on 02.10.2000, during the first shift, at about 1.30 p.m., while he was working in the Mine-
I:
i) he did not carry out the work allotted to him,
ii) he used unparliamentary words against his superiors,
iii) he manhandled his co-workers and
iv) he was in a drunken condition.
The workman submitted his explanations on 18.10.2000, 28.10.2000, 30.12.2000 denying the charges. An enquiry was ordered against the
workman and two witnesses were examined on the side of the Management M/s. P. Chandresan and G.V. Ramachandran. The workman
examined himself apart from one M. Selvaraj on his side. Though the enquiry was not held properly, the Enquiry Officer gave his report dated
08.03.2004 and held charges 1 to 3 were proved. But the 4th charge relating to drunkenness was not proved. The workman was asked to give
explanation on the findings. Notwithstanding his explanation, the disciplinary authority accepted the Enquiry Officer''s report and proposed his
dismissal by a second show cause notice dated 06.08.2004. He further submitted a detailed explanation on 27.08.2004. But however, he was
dismissed from service by an order dated 30.10.2004. He preferred an appeal dated 12.11.2004 which was dismissed by the Appellate Authority
by an order dated 10.02.2005.
Thereafter, the workman raised an Industrial Dispute before the Assistant Labor Commissioner Central (Conciliation). After notice to the
Management, the Conciliation Officer as he could not bring about mediation submitted his failure report dated 24.11.2005 to the Government. The
Government of India, Ministry of Labor referred the dispute for adjudication by CGIT u/s 10(1) of the I.D. Act. The order of reference reads as
follows:-
Whether the demand of the workman, Shri Francis Priyara for reinstatement with back wages, continuity of service and all attendant benefits from
the management of Neyveli Lignite Corporation Ltd. is legal and justified? If so, to what relief the workman is entitled?
The CGIT registered the case as I.D. No. 82 of 2006 and ordered notice to the Management. The Management filed a counter statement
dated Nil April 2007. Before the CGIT, the workman examined himself as W.W.1 and filed 8 documents which were marked as Exs.W1 to W8.
On the side of the Management, one G. Thirumurugan was examined as M.W.1 and on their side, 21 documents were filed and marked as
Exs.W1 to W21.
On the basis of the materials, both oral and documentary, the CGIT held that the enquiry was held in a fair and proper manner and nowhere
the workman was prejudiced in the conduct of the enquiry. In so far as the charge of refusal to work on 02.10.2000 is concerned, it found that
non-performance of duty was proved. With reference to the exact words said to be un-parliamentary, the exact words uttered by him were not
revealed. The CGIT also found that as required under the Standing Orders, the past record of the workman was not taken into account.
Therefore, for the proved charge, the CGIT exercised its discretion u/s 11A to interfere with the penalty and imposed wage cut of 75% and
ordered reinstatement with other benefits.
As rightly held by the CGIT, the exact un-parliamentary words was not set out in the charge memo. Therefore, while giving evidence, the
Management cannot improve what was not stated in the charge memo. Even on the charge relating to refusal to work on a particular date, the
CGIT had discretion to find out whether the punishment was disproportionate and exercising power u/s 11-A(2) of the I.D. Act interfered with the
same considering the fact that the workman had put in 23 years of service.
The Supreme Court while dealing with the discretion u/s 11-A of the I.D. Act in relation to dismissal relating to use of filthy language set out the
scope for interference vide judgment in Mahindra and Mahindra Ltd. Vs. N.B. Naravade etc., . In paragraph 20, the Supreme Court held as
follows:-
It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labor
Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty
of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is
certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised u/s 11-A is available
only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the
court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may
persuade the Labor Court to reduce the punishment. In the absence of any such factor existing, the Labor Court cannot by way of sympathy alone
exercise the power u/s 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa
Cement Ltd.5 and New Shorrock Mills6 this Court held: ''Punishment of dismissal for using of abusive language cannot be held to be
disproportionate.'' In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the
language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer,
that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence
of any extenuating factor referred to hereinabove.
In the present case, the CGIT found that the exact verbal abuse was not set out in the charge memo and therefore, the charge cannot be said to be
proved.
Even though Mr. N.A.K. Sarma, learned counsel for NLC read out the evidence of Management witness that he uttered the word in Tamil as
Velai Mayir"" (Employment is like my hair), it cannot be said that it could lead the Management to dismiss a worker especially when he had put in
23 years of service. However, the CGIT was wrong in holding that non-mentioning of the past record required to be done as per the Standing
Orders in the second show cause notice will vitiate the order.
The Supreme Court while interpreting a similar Standing Order in respect of Management, Pandiyan Roadways Corp. Ltd. Vs. N.
Balakrishnan, observed as follows:-
Ordinarily, although sub-clause (5) of Clause (17) of the Certified Standing Orders is required to be complied with, the same, in our opinion,
would not mean that in a given situation, there cannot be any deviation there from. In a case where dismissal or removal from service is to be
ordinarily followed e.g. in a case of grave misconduct like misappropriation, strict enforcement of the rule may not be insisted upon. When, we say
so, we are not oblivious of the law that an executive agency is ordinarily bound by the standard by which it professes its actions to be judged. (See
Harjit Singh v. State of Punjab17.) But where a procedural provision merely embodied the principles of natural justice, in view of the decision of
this Court in State Bank of Patiala12 the question as to whether the principle has been followed or not, will depend upon the fact situation
obtaining in each case. (See Ashok Kumar Sonkar v. Union of India18.)
In view of the above, the contention made by Mr. N.A.K. Sarma, the learned counsel for the NLC cannot be countenanced by this court. At
the same time, the workman''s writ petition which was filed after two years after the Award also cannot be said to be valid not only on grounds of
delay but also on merits. The CGIT had recorded the finding of proved misconduct of one charge and therefore it is within the province of the
CGIT to impose appropriate punishment. Denial of 75% of back wages is sufficient punishment for the misconduct committed by the workman.
In the light of the above legal precedents and the factual matrix, both the writ petitions are liable to be dismissed and accordingly they will stand
dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.