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Judgment
R. Jayasimha Babu, J.—The charge against the workman (petitioner in W.P.No.6270 of 1995), who was a light motor vehicle driver under
the employer (petitioner in W.P.No.1580 of 1995) was that on 4.4.1987 at 3.30 P.M. he entered the Chief Medical Officer''s room without
permission and misbehaved with the medical attendant Kumaran by abusing him in filthy language and also committed assault. The other charge
was that he came to duty in a drunken state. Yet another charge was that on that day from 1.30 P.M. onwards he was not working in the work
spot.
After the employee submitted his reply to the charge memo, admittedly, an enquiry was held at which seven witnesses were examined for the
management who were also cross-examined. The workman did not choose to examine any witness on his behalf though he examined himself. At
the conclusion of the enquiry the enquiry officer found the charges to have been proved. Thereafter the employee was dismissed from service on
25.6.1988.
The workman having raised a dispute u/s 2A(2) of the Industrial disputes Act, the Industrial Tribunal framed two points for consideration viz.,
(1) whether the termination of the service is justified and, if not, to what remedy is the workman entitled; and (2) Whether the relief can be
compensated in terms of money.
Before the Tribunal, the workman examined himself as W.W.1 and documents W-1 to W-4 were marked. The management had marked
documents M-1 to M-11, but did not examine any witness. The workman''s counsel made an endorsement on 24.12.1992 not pressing the issue
with regard to the fairness of the enquiry. The Tribunal has noted that the matter was argued only with reference to Section 11-A of the Industrial
Disputes Act.
The Tribunal has, in paragraph 5 of its order, after referring to the endorsement made by the counsel for the workman and stating that the
argument was confined to Section 11-A of the Act, noted thus:-
The petitioner was examined on his behalf and documents MW1 to 4 were marked. No witness was examined on behalf of the management.
Management documents M1 to 11 were marked. When the matter was taken up for argument the learned counsel appearing for the petitioner
made endorsement dated 24.12.1992 stating that he is not pressing the issue with regard to the fairness of the enquiry and is arguing the matter as
per Section 11-A of the Industrial Disputes Act. The charge against the petitioner was that on 4.4.87 at 3.30 p.m. the petitioner who was the light
motor vehicle driver entered the room of Chief Medical Officer and caught hold of the shirt one employee by name Kumaran, abused him with
filthy language and attempted to assault him, that though the Chief Medical Officer asked him to go out he came out of the room created a scene
by abusing in filthy language; not present in the working spot on that date. For proving the charges 7 witnesses were examined by the management.
The seven witnesses inclusive of Dr.Kannappan, Dr.Loganathan and Mr.Kumaran. The witnesses were eye witnesses and their evidence
corroborate each others. No contradictions in the evidence of the eye witnesses was pointed out on behalf of the petitioner. No reasons were
given by the petitioner to show that the witness gave false complaint and false evidence against the petitioner. Of the 8 days the petitioner
participated 7 days in the enquiry and cross-examined the witnesses. The petitioner cross-examined all the witnesses. Though permission was
granted to examine witnesses on his behalf, the petitioner failed to examine himself or any other witness. It is very much clear that ample
opportunity was given to the petitioner in the domestic enquiry. A perusal of the evidence adduced by the management shows that there is no
reasons to disbelief the same. The management evidence is corroborating each other. Therefore, I am of the view that the charges were proved
after proper domestic enquiry.
The tribunal,after so holding that the charges have been proved, at paragraph 6 of the order, has proceeded to state thus:-
Though it could not be said that the punishment imposed is excessive, considering the petitioner''s family circumstances, the petitioner was already
removed and the industrial tribunal refused to grant approval and hence reinstated in service, the view to reinstate the petitioner is weighing more.
When it was suggested the learned counsel appearing for the respondent stated that the petitioner could be reinstated without back wages and
continuity of service. Therefore, I order that the petitioner could be reinstated in service with continuity of service, without back wages and other
benefits by setting aside the removal order.
Finally by considering the family circumstances of the petitioner an award is passed directing reinstatement with continuity of service, without back
wages and other benefits. No costs.
This award has been challenged by the workman as also by the employer. For the workman it is contended that the Tribunal has failed to
examine the documents and the oral evidence that had been placed before the enquiry officer and has overlooked the contradictions which,
according to the workman, were found in the evidence tendered before the enquiry officer. The counsel for the workman contends that the
Tribunal has not applied its mind and, therefore, the impugned order of the Tribunal should be set aside and the matter remanded to the Tribunal
for proper consideration afresh.
For the employer it is submitted that the Tribunal having upheld the fairness of the enquiry and that the guilt of the delinquent workman has been
proved, the punishment that had been imposed by the employer should have been upheld instead of the employer being directed to reinstate the
workman on account of ""family circumstances"" of the workman about which nothing is said in the award.
The submission made by the learned counsel for the workman, having regard to what the Tribunal has stated in the award, cannot be accepted.
It was not necessary for the Tribunal to reproduce the evidence of the witnesses who were examined before the enquiry officer. The Tribunal was
required to apply its mind to the records placed before it, before arriving at a conclusion as to whether the workman had properly been found to
have been guilty of the misconduct with which he was charged. The Tribunal has specifically noted that the witnesses examined were eyewitnesses
and that their evidence corroborates each other. It has also noted that no contradictions in the evidence had been pointed out on behalf of the
workman. There is no reason at all to hold that these observations of the Tribunal are in any way incorrect. The Tribunal has further proceeded to
note that no reasons had been given by the workman to show that the witness had given a false complaint or that false case ad been foisted against
him. The acceptance of the findings of the enquiry officer by the Tribunal after having perused the evidence that had been considered by him and
after hearing the arguments of the counsel for the workman, cannot be said to be vitiated. The impugned award, therefore, does not require to be
set aside.
So far as the punishment is concerned, the Tribunal has not held anywhere that the punishment imposed was not justified by the evidence on
record. On the other hand, its specific finding is that the charge was proved and further that it could not be said that ""the punishment imposed is
excessive"". Having reached these conclusions, the Tribunal ought to have upheld the punishment. Instead, it has referred to ""family circumstances
about which nothing is forth coming in the award and has, relying on that ""family circumstances"", directed reinstatement of the workman with
continuity of service. It has incidentally referred to a suggestion attributed to the counsel for the employer that the employee could be reinstated
without back wages and continuity of service. That reference to the suggestion said to have been made by the employer''s counsel is repudiated by
the counsel who had appeared before him who subsequently filed an affidavit denying having made any such suggestion or agreeing to reinstate the
workman without back wages and continuity of service.
Learned counsel for the employer is right in relying upon the law stated by the Apex Court in the case of A.P.S.R.T.C. represented by Depot
Manager Vs. K. Pochaiah and Another, . In that judgement it was observed by the Court in paragraph 5 thus:-
It is one thing to find that the punishment is disproportionate to the indiscipline and to reduce the severity thereof. It is quite another to hold that the
punishment was justified and yet to direct the employer to re-employ the delinquent employee. The High Court does not have the jurisdiction or the
power to do so, on compassionate grounds or otherwise.
This observation applies squarely to the facts of this case. The impugned direction of the Tribunal for reinstatement is obviously one based upon the
Tribunal''s view of compassion. He has referred to ''family circumstances'' and that is obviously the only factor which guided him in directing the
reinstatement. That certainly was not within his jurisdiction to be adopted as a basis for directing such reinstatement.
Observations more or less similar to what has already been extracted from the aforementioned judgement of the Apex Court are also to be
found in the case of U.P.S.R.T.C. Vs. Pukhraj Singh and Others, , wherein the Court observed at para 6 thus:-
It is one thing to hold in a given case that the punishment imposed by the employer is very harsh and to substitute something less. It is altogether
different, and untenable, to find that the employer has validly and legally terminated the services of the employee and that the latter is not entitled to
any benefit and yet to require the employer to engage the employee in some other post.
Having regard to the fact that the Tribunal has exceeded its jurisdiction in directing reinstatement even after having found that the workman was
found guilty of misconduct with which he was charged and also having found that the punishment was not excessive, the direction given by the
Tribunal for the reinstatement of the workman is set aside. The writ petition filed by the employer is thus allowed and the one filed by the workman
is dismissed. The connected W.M.Ps. are closed.