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Judgment
K. Chandru, J.—The petitioner is a management in both the Writ Petitions. The Writ Petitions were filed against the Award of the 1st
respondent Labour Court in I.D. Nos. 29 and 30 of 1998.
The Writ Petitions were admitted on 18.8.2000. Pending the Writ Petitions, by an interim order granted on the same day, the petitioner
management was directed to deposit Rs. 1 Lakh in respect of each contesting respondent to the credit of the two industrial disputes within four
weeks. A further direction also was given to the management to comply with Section 17B of the Industrial Disputes Act. It was also indicated that
the 2nd respondent in each of the Writ Petition are entitled to withdraw 50% of the amount deposited and the balance amount shall be deposited in
Indian Overseas Bank, Esplanade Branch, Chennai for a minimum period of 3 years and thereafter it shall be renewed periodically. The workmen
were directed to withdraw the interest quarterly on production of identification certificate. Subsequently, when the matter came up on 4.9.2003, it
was stated that the order has been complied with.
However, it is brought to the notice of this Court by Mr. S. Ravindran, learned Counsel for the petitioner that despite the workmen were
dismissed for proved act of dishonesty, their contention was that the Labour Court ought not to have exercised the power u/s 11A of the Industrial
Disputes Act. The management for various reasons have reinstated both the contesting respondents and they are in service. He also brought to the
notice of this Court that the money in deposit is still with the Labour Court and despite orders from this Court, the contesting respondents have not
withdrawn the amounts ordered by this Court.
Be that as it may. The charge against the contesting respondents in both the cases was that the contesting respondents have committed gross
acts of misconduct inasmuch as they have claimed overtime wages for the period for which they never worked and disregarded the instructions
issued by the superior.
A perusal of the impugned award shows that the Labour Court by its preliminary order dated 28.4.2000 held that the enquiry against workmen
were held in accordance with law and following principles of natural justice. Thereafter, on the basis of the materials, it also held that the
misconduct also has been proved. The Labour Court held that under the Standing Orders applicable to the workmen, there was no compulsion to
do overtime. But, however, on 14.8.1996 during the second shift, the worker did not do the third shift. The workmen were expected to do
overtime on 15.8.1996. That was a day of India''s Independence. However, the workmen falsely claimed that they had worked from 3.30 a.m. to
4 a.m overtime. They also admitted the charges by Ex.M. 34. Therefore, the Labour Court recorded the finding that the charges were proved.
But, while exercising the power u/s 11A of the Industrial Disputes Act, the Labour Court held that the punishment was excessive and before
imposing punishment, long service put in by the workers were not considered and the previous misconduct was in proof. In that view of the matter,
the Labour Court directed to reinstate the workers with 50% of the backwages but with service continuity. It is these two awards, which are under
challenge.
Mr. S. Ravindran, learned Counsel for the petitioner brought to the notice of this Court the judgment of the Supreme Court in M.D., Balasaheb
Desai Sahakari S.K. Ltd. Vs. Kashinath Ganapati Kambale, . In that case, the Supreme Court held that though the Labour Court is entitled to
exercise its discretion with reference to the proportionality of the punishment, the same must be exercised in a judicial manner. Ordinarily the
Labour Court should not interfere with the discretion exercised by the employer. The Supreme Court also found in that case that the workmen was
guilty of unauthorised absence. Therefore, reinstating him with 50% of the backwages was not adequate punishment. It also held that in claiming
backwages, the workmen must satisfactorily prove before the Labour Court that they were not gainfully employed. It is also stated that the
workmen is not expected to remain idle during the period of his non-employment. In that view of the matter, the Supreme Court interfered with the
order passed by the Labour Court and directed the forfeiture of the backwages and in other respects, the award was confirmed. In the very same
judgment, the Supreme Court also held that the worker has been already paid Rs. 60,000- by the management. Therefore, the amount need not be
recovered.
Though in the present case, the award of the Labour Court came for serious attack by the management by stating that the workers were
dismissed for their act of dishonesty and if such act of dishonesty is proved by materials on record, the Labour Court ought not to have exercised
discretion especially in a case of dishonesty. Even a single act of dishonesty is sufficient to impose dismissal. The petitioner, if not detected, would
have walked off with overtime wages for which they have never rendered any service.
In the present cases, after making such serious allegations and after this Court passed the interim order on 18.9.2000, the petitioner
management themselves have reinstated the workers for their own reasons, which are not explained before this Court. It is also noted that it may
be for the purpose of avoiding the mandatory payment u/s 17B as ordered by this Court. In any event, if the charge of dishonesty is so severe, no
one is expected to restore the very same workers to service, even pending the challenge to the award. This is an undeniable fact. Subsequent to
the Writ Petition, the workmen have been reinstated and they are also in service. This will be a factor, which works against the management in their
assailing the award.
In any event, alternatively, the learned Counsel for the petitioner contended that in the light of the judgment in (2009) 2 SCC 288, this Court
must use its discretion to interfere with the award with reference to the backwages. It is also stated that the workers have not withdrawn the
amount lying in deposit. At the time when Rs. 1 Lakh was deposited, in respect of each of the workmen, which approximately represents the
wages payable to them. Unfortunately, the workmen are not represented before this Court by any counsel.
Considering the overall facts and circumstances of the case, this Court is of the view that while the contesting respondents'' reinstatement with
continuity of service need not be disturbed, with reference to the direction to pay 50% of the backwages, it may be contrary to the dictum laid
down by the Supreme Court in the decision cited above. In that view of the matter and in order to give quietus to the issue, this Court directs each
of the contesting respondent can withdraw 50% of the amount already ordered by this Court in the order dated 18.8.2000 and the balance
amounts can be withdrawn by the management. The award will stand modified to the extent indicated above. In other respects, the Writ Petitions
will stand dismissed. There will be no order as to costs.