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Judgment
W.P. No. 23187/2011 is preferred by the workman calling In question the award dated 18.9.2010 in I.D. No. 93/2005 of the III Additional Labour Court, Bangalore, insofar as it relates to denial of back wages. W.P. No. 23184/2011 is preferred by the workman calling in question the award dated 18.9.2010 in I.D. No. 95/2005 of the III Additional Labour Court, Bangalore insofar as it relates to denial of back wages.
W.P. No. 39967/2010 is filed by the management calling in question the award dated 18.9.2010 in I.D. No. 93/2005 of the III Additional Labour Court, Bangalore directing reinstatement" with continuity of service and consequential benefits. W.P. No. 39968/2010 is filed by the management, calling in question the award dated 18.0.2010 in I.D. No. 95/2005 of the III Additional Labour Court, Bangalore directing reinstatement with continuity of service and consequential benefits.
With the consent of the learned Counsel for the parties, petitions are clubbed together, finally heard and are disposed of by this order.
Facts common in the petitions are: the workmen when appointed as a workmen, Grade-I, were transferred to discharge duties at M/s 5 M Automats, No. 440/1, Doddamma Layout, Hulimavu Village, Bannerghatta Road, Bangalore-76 and M/s A.G. Industries, 1 & 2, 1st Cross, Siddapura, Hosur Road, Wilson Garden, Bangalore-27, respectively. While discharging duties at the place of transfer, the workmen addressed letter dated 19.7.2004 stating that the place of transfer i.e.. M/s 5 M Automats and M/s A.G. Industries were not branches of the Management and the transfers were violative of the standing orders, despite which they obeyed the orders. The workmen alleged that third parties were pressurizing them to honorably accede or resign, by accepting a decent package, and therefore, the request to be brought back to the original place of work and that the Managing Director could fairly negotiate directly with them and not through third parties. This letter was taken offensive by the Management, who felt that the statements in the letter were baseless, malicious, frivolous and damaged the image of the Company and therefore, called upon the workmen to submit their explanations by letter dated 29.7.2004, Which was acknowledged by the workmen on 31.7.2004. Explanations were offered by the workmen, without disclosing the name of the third parties, when not found convincing, the Management by letter dated 12.8.2004 directed them to show cause as to why action in accordance with law should not be initiated, to which the workmen submitted a reply dated 16.8.2004. The Disciplinary Authority not. being satisfied with the explanation, appointed an Enquiry Authority to hold a domestic enquiry into the charges and after extending reasonable opportunity of hearing to the workmen, in the separate domestic enquiry proceeding, returned findings holding the charges proved. The opportunity extended by the Management to show cause, over the Enquiry Authority''s report, led to a reply dated 12.10.2004. The Disciplinary Authority, on an independent assessment of the facts, circumstances, and the material on record, held the workmen guilty of the charges and having lost confidence in the workmen, by orders of even date 16.5.2005, dismissed the workmen from service.
The orders of dismissal were called in question by filing two petitions invoking section 10(4-A) of the Industrial Disputes Act, 1947. for short Act, before the Labour Court. Bangalore registered as I.D. Nos. 93 and 95 of 2005. respectively. the claim petitions were resisted by filing counter statements of the Management, following which, the Labour Court framed issues, first of which related to validity of the domestic enquiry. Parties when permitted to adduce evidence on that issue the Labour Court by order dated 12.1.2010 returned a finding in the affirmative, holding the domestic enquiry as fair and proper. The workmen entered trial on the allegation of victimization and thereafterwards, the Labour Court by the awards impugned recorded a finding that the workmen were victimized and that the punishments of dismissal were grossly disproportionate to the gravity, of misconduct held proved and accordingly directed reinstatement with continuity of service and consequential benefits, however, without back wages.
Having heard the learned counsel for the parties, examined the awards impugned. The following questions arise for decision making:
(i) Whether in the facts and circumstances of the case, the Labour Court was not justified in directing reinstatement with continuity of service and consequential benefits as contended by the Management?
(ii) Whether in the facts and circumstances of the case, the Labour Court was not justified in declining back wages as contended by the learned counsel for the workmen?
(iii) If not, to what relief?
The thrust of the argument of the learned counsel for the Management is that the insinuations made by the workmen, in the letter dated 19.7.2604, attributing false and malicious propaganda against the Managing Director involving an alleged third party, which when admitted by the workmen tantamounts to gross indiscipline in terms of Clauses 54. 55. 56 and 57 of the certified Standing Orders No. XX. inviting imposition of a major punishment. Learned counsel hastens to add that the intention of the workman as animated in the letter dated 19.7.2004, the Management had lost confidence in the workmen, deserving the imposition of major penalty of dismissal from service. Learned counsel further contends that the Labour Court drew an inferential finding over victimization, in the absence of substantial legal evidence and hence was a perverse. It is next contended that the Labour Court failed to appreciate the statements in the letter dated 19.7.2004, which were malicious and demonstrated the attitude of the workmen towards the Management disentitling the Labour Court to invoke Section 1 LA of the Industrial Disputes Act, 1947 to modify the orders of dismissal so as to reduce the punishment to one of reinstatement with continuity of service and consequential benefits, without back wages. Learned counsel places reliance upon a line of reported opinions of the Apex Court.
Per contra, learned counsel for the workmen seeks to sustain the awards impugned as being well merited, fully justified and not calling for interference. Learned counsel contends that the Labour Court having recorded a finding of victimization, it is axiomatic that the workmen be entitled to back wages.
An examination of the awards impugned discloses that the workmen when transferred to work in the factories of M/s. 5 M Automats and M/s. A.G. Industries, reported to duties, while the Management failed to place relevant material to establish that they were branches belonging to the Management, a fact, necessary to appreciate the statements made by the workmen in the letter dt. 19.7.2004. In the backdrop of the transfer, the Labour Court observed that; the letter dated 19.7.2004 animated a request to re-transfer the workman from M/s 5 M Automats and M/s A.G. Industries to the place of original work, by withdrawing the orders of transfer, since some third parties were trying to negotiate and settle the matter, by coercing them to either resign or walk out with a descent package. The Labour Court further observed that the reply dt. 31/7/2004 of the workman to the show cause notice, indicated that the workmen had a large families dependant upon them and as many judgments over termination, of the employment had been passed, they were mentally tensed and hence the request to withdraw the orders of transfer without intending to hurt or damage the Image or prestige of the organisation. In other words, the workmen expressed their bonafides and the intention behind addressing the letter dated 19.7.2004.
Thus the question, that the Labour Court was required to decide was, whether the statements made by the workmen in the letter dated 19.7.2004 were derogatory, damaging, malicious or intentional so as to cause damage to, the reputation of the Employer- organization?
The answer to this question lies in a critical analysis of the evidence marshaled in the domestic enquiry by the parties since the finding over validity of the enquiry is held fair and proper and not the evidence tendered by the workmen, over allegations of victimization, before the Labour Court. The Labour Court, in my considered opinion, fell in error in not appreciating the material on record in the Domestic enquiry, in order to sieve the evidence and find the lesser of the truth, but did so by a reading of the letter dated 19.7.2004 Ex.M8, to conclude that the statements made therein were not malicious or derogatory. The Labour Court did not notice the allegation of involvement of a third person, who had, by words or action, caused mental stress to the workmen as set out in their letter dated 19.7.2004 Ex.M8, and in the absence of relevant material over the said relevant fact, the findings recorded by the Labour Court are not justified.
The workman when transferred to work at different places, did not question the orders of transfer, but accepted the same and reported to duty at the places of transfer, it was not the allegation of the workman in the letter dt. 19/7/2004, Ex.M8. that the orders of transfer were motivated due to their trade union activities or for having submitted a charter of demands. The Labour Court, without appreciating the said facts, appears to have misdirected itself to the pleading in the claim statement and the evidence on victimization to conclude that the orders of transfer ''might'' have occasioned due to trade union activities. This finding Is inferential and perverse.
As to what is victimization as understood in Industrial Law is succinctly set out in the opinion of a learned Single Judge of the Calcutta High Court in National Tobacco Co. of India Ltd. and Others Vs. Fourth Industrial Tribunal and Others, , which reads thus:
As far as I can see, victimization means one of two things. The first is where the workmen concerned is innocent and yet he is being punished because he has in some way displeased the employer, for example, by being an active member of an union of workmen who were acting prejudicially to the employer''s interest The second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence simply because he has incurred the displeasure of the employer in a similar manner as mentioned above. But where it is found that the employee is guilty of gross misconduct then there cannot he any question of victimization because it merits dismissal by itself xxxx.
Keeping in mind the aforesaid principles, it is apparent that the awards impugned do not animate proper appreciation of allegations of victimization to record a finding that the workmen were victimized by imposing the punishment of dismissal from sendee.
In Usha Breco Mazdoor Sangh Vs. Management of Usha Breco Ltd. and Another, , the facts were that the workman was found to be not only abusing the Contractors, even an iron rod was taken to threaten the Contractor with a view to assault, hence a case of misconduct had been made out. and the Apex Court observed that it was a matter of importance to determine as to who started quarrelling; who started using abusing language; who started shouting; whether workmen were more sinned against than sinning; whether there were material on record to arrive at a finding on the said issue, which should have been the questions posed by the Labour Court.
In Mahindra and Mahindra Ltd. Vs. N.B. Naravade etc., the Apex Court having noticed the lenient view taken by Labour Courts, in the matters ox discipline by exercising Section 11(A) of the I.D. Act observed thus:
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 Labour 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 he 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 mc sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment.
The Labour Court, therefore, was required to assess the material on record to return a finding as to whether it was a fit case to exercise jurisdiction u/s 11A of the Act. Apparently, the awards impugned do not animate such a consideration or effort by the Labour Court, except recording a finding that the punishment of dismissal is grossly disproportioned to the gravity of misconduct held proved.
In that view of the matter, it is needless to state that the proceedings deserve to be remitted for a consideration afresh over the perversity of the findings recorded by the Enquiry Officer and victimization as alleged by the workmen. The questions framed are answered accordingly.
In the result, petitions filed by the Management are allowed. The awards impugned are quashed and the proceedings remitted to the III Additional Labour Court, Bangalore for consideration, afresh, after extending reasonable opportunity of hearing to the parties, and to pass awards strictly in accordance with law and in the light of the observations supra.
Writ petitions filed by the workmen are rejected.