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Judgment
It is the State Transport Corporation, Madurai Division (herein after called as the ''Management''), aggrieved by both the order of reinstatement with service continuity but without backwages has filed the first writ petition viz., W.P.(MD) No. 4260 of 2008.
In the second writ petition viz., W.P.(MD) No. 13249 of 2009, the workman has filed the writ petition, challenging that portion of the order in declining to grant the benefit of backwages with effect from 5/10/2000, which is a date of his non-employment.
In view of the interconnectivity between both the writ petitions, they were grouped together and a common order is pas sed.
In the first writ petition, notice regarding admis sion was granted on 30/4/2008. Pending the writ petition, interim stay was granted. By order dated 22/8/2008, interim stay was extended until further orders in M.P. No. 1 of 2008. Subsequently, on a petition being filed by the workman in M.P. No. 2 of 2008, this Court granted a payment u/s 17(B) as an interim relief. The Petitioner thereafter, filed M.P. No. 1 of 2009 seeking for the payment of full wages.
It is during the pendency of the writ petition, the worker has filed another cros s- objection which came up for admis sion on 15/12/2009 and accordingly, it was admitted. On notice, the Management has filed a counter. It is seen from the records that the Petitioner in W.P.(MD) No. 13249 of 2009 was appointed as a Conductor on 20/10/1993. Subsequently, the Corporation found that he was a chronic absentee and a charge memo was issued in terms of standing order Clause 16 (7) and a domestic enquiry was conducted. The Petitioner not only did not give any explanation also did not attend the enquiry. The enquiry was held ex parte and the Enquiry Officer found the Petitioner did not give any explanation and therefore, he was dismis sed from service on 5/10/2000. Subsequently after three and a half years later, he raised the dispute. Before the labour Court, on the side of the workman, two documents were filed and marked as Exs.W.1 and W.2 and on the side of the Management, 8 documents were filed and marked as Exs.M.1 to M.8. The labour Court found that the enquiry was held fair and proper and despite several opportunities, the Petitioner did not avail the same. But, however, the labour Court also found that the charge of absence was proved. But considering the Petitioner was worked for seven years and he was searching for his lost son and also due to ailment, he could not come to work and hence, the Labour Court, Madurai dismis sed the claim of back wages. But on the quantum of relief, the Management contended that since the Petitioner who did not come to work, no wages should be paid to him on that account.
In this context, it is necessary to refer to the decision of the Supreme Court in J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another, , wherein it is held as follows:
But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.
Therefore, the Managements'' contention that the labour Court has exercised its discretion improperly, cannot be accepted. The workman''s claim that he is eligible for back wages even for the period that he did not work also cannot be considered.
In this context, the Supreme court in case of absence, the discretion of the labour Court to exercise its power u/s 11A came to be considered in L and T Komatsu Ltd. Vs. N. Udayakumar, and the relevant paragraphs are extracted hereunder:
In LIC of India v. R. Dhandapani, it was held as follows....
In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. (See Kerala Solvent Extractions Ltd. v. A. Unnikrishnan.)
Though u/s 11-A, the Tribunal has the power to reduce the quantum of punishment it has to be done within the parameters of law. Possession of power is itself not sufficient; it has to be exercised in accordance with law.
The High Court found that the Industrial Tribunal had not indicated any reason to justify variations of the penalty imposed. Though learned Counsel for the Respondent tried to justify the award of the Tribunal and submitted that the Tribunal and the learned Single Judge have considered the case in its proper perspective, we do not find any substance in the plea. Industrial Tribunals and Labour Courts are not forums whose task is to dole out private benevolence to workmen found by the Labour Court/Tribunal to be guilty of misconduct. The Tribunal and the High Court, in this case, have found a pattern of defiance and proved misconduct on not one but on several occasions. The compassion which was shown by the Tribunal and unfortunately endorsed by the learned Single Judge was fully misplaced.
In Mahindra and Mahindra Ltd. v. N.B. Narawade it was noted as follows: (SCC p.141, para 20).
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 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 Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour 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 civilised 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 view of the above factual matrix and the legal precedents, both the writ petitions are dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed. The Management is hereby directed to implement the award within a 19 period of eight weeks from the date of receipt of a copy of this order.