The Workmen of India Cements Limited vs The Presiding Officer, Labour Court and Another

S.A. Kader, J.—This writ petition has been filed by the Labour Union of India Cements Limited, Sankari for the issuance of a Writ of

certiorari quashing the award dt.31-5-1982 passed by the first respondent-Presiding Officer, Labour Court, Coimbatore in his I.D.No. 18 1981

and published in the Government Gazette dated 7-7-1982 and pass such other and necessary orders.

In June, 1971 the petitioner Union called a strike of the workmen in the second respondent-the India Cements Limited, Sankari. During the

continuance of the strike the management suspended 19 workmen including the five in respect of whom this writ petition has been filed for

participating in the strike and for instigating other workmen. On 1-7-1971 a settlement was reached between the petitioner-Union and the

management in the presence of the then Honourable Minister for Labour, Government of Tamil Nadu. under Clause (4) of the said accord the

nineteen, workmen on suspension were allowed to work without prejudice to the disciplinary proceedings pending against them, but the final action

would be taken in consultation with the Minister for Labour. By their separate orders dated 27-12-1971 the management dismissed all the

nineteen workmen. The petitioner-Union protested to the management as well as the Honourable Minister for Labour against the said dismissal as

it was contrary to the terms of the settlement dated 1-7-1971. In May, 1972, the petitioner-Union received a letter dated 27-5-1972 from the

Commissioner of Labour, Madras stating that the Minister reviewed these cases and though he considered that there was a case for severe

disciplinary action in all the nineteen cases, a lenient view could be taken considering all relevant circumstances in the case of 14 workmen

mentioned in Schedule I to the said communication and they could be taken into employment as new entrants but without reduction in their last

drawn emoluments and in the same occupations to which they were earlier attached. They were also directed to be absorbed not later than 5-6-

1972. In respect of the other five workmen viz., Messrs. V. Srinivasan, K. Karunakaran, G.K. Vijayappan, M.S. Ponnuvelu and Mathew Moris,

the Minister found that there was no ground for reopening their cases. By a subsequent communication dated 6-12-1972 the honourable minister

directed the management to give to the fourteen workmen continuity of service but without back wages. The petitioner-Union raised an industrial

dispute concerning the non-employment of the aforesaid five workmen,. But, the Government of Tamil Nadu by G.O.Ms.No. 708, dated 5-4-

1975 declined to refer the dispute for adjudication. W.P.No. 6816 of 1975 filed by the Union before this Court was dismissed and the writ appeal

shared the same fate. But, the Supreme Court in its order dated 2-2-1981 in Civil Appeal No. 537 of 1981 directed the reference of the dispute

regarding the dismissal of these five workmen for adjudication. In consequence the Government of Tamil Nadu by G.O.No. 423, dated 20-2-

1981 referred the question of non-employment of the five workmen for adjudication to the Labour Court, Coimbatore. The first respondent

Labour Court took the reference on file as I.D.No. 18 of 1981 and by its award dated 31-5-1983 dismissed the claim of the five workmen. It is

this award this is challenged in this writ petition.

The second respondent-management of India Cements, Sankari resists the writ petition. It is contended that the award passed by the Labour

Court is not liable to be impugned on any ground.

The main contention advanced by Mr. N.G.R. Prasad, learned Counsel for the petitioner-Union is that the orders of the management dismissing

the aforesaid five workmen is not in accordance with the accord entered into between the management and the Union on 1-7-1971. It is pointed

out that under Clause (4) of the said agreement the final action has to be taken by the management only in consultation with the Minister for Labour

and as there was no consultation with the Honourable Minister before the orders of dismissal were passed, the said orders are in violation of

Clause (4) of the accord According to the management, the orders of dismissal passed against the aforesaid five workmen fully complied with the

accord dated 1-7-1971 and do not, therefore, suffere from any infirmity.

Clause (4) of the accord dated 1-7-1971 runs thus:

The 19 workers on suspension will be allowed to work without prejudice to the disciplinary proceedings pending against them, but the final action

to be taken will be decided in consultation with the Minister for Labour.

A plain reading of the above clause would show that after the enquiry was over and after recording a finding of guilt against the delinquent

workmen, the Honourable Minister for Labour has to be consulted before the final order imposing punishment, if any, is passed. What has been

done in this case is that the management has passed orders on 27-12-1971 dismissing all the nineteen workmen and thereafter the papers have

been placed before the Honourable Minister for Labour who has decided in favour of the reinstatement of 14 workmen and for confirmation of the

orders of dismissal in respect of the aforesaid five workmen. The observation of the Labour Court that this contention of the petitioner does not

derive any support from Clause (4) of the agreement is patently erroneous. No other conclusion, excepting that the Honourable Minister must be

consulted before the final order of punishment is passed, is possible. Instead the management has passed the final orders of dismissal against all the

nineteen workmen and then submitted the papers to the Honourable minister for ""approval"" as observed by the Labour Court. This is not the

consultation contemplated in Clause (4) of the accord dated 1-7-1971; it is only a review by the Minister of the orders of dismissal passed by the

management. It is not without significance that in the communication dated 27-5-1972 of the Commissioner of Labour he has stated that the

Honourable Minister has reviewed these cases. What is required under Clause (4) of the accord is consultation with the Honourable Minister

before the passing of the final orders and not the review of the final orders of the management by the Minister. This is really putting the cart before

the horse. I have, therefore, no hesitation in concluding that the orders of the management dismissing the dive workmen is not in accordance with

the settlement dated 1-7-1971.

It is urged on behalf of the management that under the accord the Honourable Minister for Labour was appointed Arbitrator and hence the

decision of the Honourable Minister directing reinstatement of the fourteen workmen and confirming the orders of dismissal against the remaining

five is in the nature of an award and is binding on both the parties. This is indeed doing violence to the language of Clause (4) of the accord. What

the clause says is that the disciplinary proceedings against the nineteen workmen have to be continued but the final action is to be taken in

consultation with the Minister for Labour. By no flight of fancy can it be said that the Honourable Minister for Labour was constituted an

Arbitrator. There is absolutely nothing to indicate even remotely that the Union or even the management agreed to be bound by the decision of the

Minister in the disciplinary proceedings initiated against the nineteen workmen. To refer again to the communication of the Commissioner of

Labour, Madras dated 27-5-1972 there is not even the whisper of a reference to Arbitration by the Honourable Minister or award passed by the

Minister. It merely states that the Minister has reviewed the cases and has considered that 14 of the workmen are to be restored and there was no

ground for reopening the case of the other five. Further if that was a case of Arbitration by the Honourable Minister, where is the question of a

reference under the Section 10(1) of the Industrial Disputes Act? There is, therefore, little difficulty in concluding that the Minister was not

constituted an Arbitrator and his decision is not an award.

It is then contended by Mr. N.G.R. Prasad, learned Counsel for the Union that the cases against all the nineteen workmen were the same, the

charges framed against them were the same, the findings of the Enquiry Officer were the same and hence the final orders reinstating 14 workmen

and dismissing the remaining five amounts to hostile discrimination. According to the management, while 14 workmen who have been restored

were guilty of participating in the illegal strike and instigating others to join the strike, these 5 workmen who have been dismissed from service were

guilty, in addition, of intimidating other workmen. Hence there is no discrimination. The order of dismissal passed against A.P. Varadarajn, who is

one of the workmen restored to service is marked as Ex.W-3, and it is represented that similar orders were passed in respect of the other 13

workmen reinstated. Ex.W-4 is the order of dismissal passed against k. Karunakaran, one of the five workmen who were dismissed from service

and this is said to be similar to the other order of dismissal passed against the remaining 4 dismissed workmen. Admittedly the charges framed

against all the nineteen persons is the same and it is to the following effect:

It may here and now be pointed out that there is no charge of intimidation against 5 workmen who are dismissed from service. The finding in

Ex.W3, order of dismissal passed against Varadarajan, who is one of the fourteen restored to service, is that he participated in illegal strike and

instigated others to join the strike and they are serious offences under Rule 22(25) of the Standing Rules of the Company. The finding in Ex.W4

order of dismissal passed against\karunakaran, one of the five workmen who are dismissed from service is also that he participated in the strike

and instigated others to participate and they are unpardonable heavy crimes under Rule 22(25). There is no finding of intimidation against these five

workmen. It is thus seen that the charges and the findings are the same in all the nineteen cases. It is well settled that whether it is a case of criminal

trial or a domestic enquiry, the parties are confirmed to the charges framed and the Court or the Enquiry Officer, as the case may be, cannot travel

outside the charges, admit evidence or give any finding in respect of any matter extraneous to the charge. The mere fact that some witnesses have

alleged intimidation against the dismissed five workmen is totally irrelevant and cannot be taken into consideration for the simple reason that the

delinquent workmen have not been called upon to meet that allegation, no charge having been framed in respect thereof. The learned Presiding

Officer of the Labour Court has not considered this aspect of the matter in the proper perspective. When the charges against all the nineteen

workmen is the same, the dismissal of five workmen only certainly amounts to discrimination.

It is further urged by Mr. N.G.R. Prasad, learned Counsel for the petitioner-Union that the Labour Court has not considered the case in

accordance with the provisions of Section 11-A of the Industrial Disputes Act introduced by the Amendment Act of 1971. It is pointed out that

the Labour Court has the power and duty to reappreciate the evidence let in at the domestic enquiry and come to its own conclusion. Nowhere in

the award has the Labour Court dealt with the evidence recorded at the domestic enquiry to find out whether the charges against the dismissed 5

workmen have been established to its satisfaction or not. The award is vitiated thereby. There is considerable force in this contention. In The

Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, , the Supreme Court observed thus:

The words'' in the course of the adjudication proceeding the Tribunal is satisfied that the order of discharge or dismissal was not justified'' clearly

indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself on by an employer

established the misconduct alleged against a workmen. What was originally a plausible conclusion that could be drawn by an employer from the

evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct, is correct. The limitations imposed

on the powers of the Tribunal by the decision in Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, can no longer be invoked by an

employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to

differ from the said finding if a proper case is made out. What was once largely in the realm of satisfaction of the employer, has ceased to be so,

and now it is the satisfaction of the Tribunal that finally decides the matter.

In answer there to Mr. S. Jayaraman, learned Counsel for the second respondent would urge that the petitioner-Union has not challenged the

correctness of the finding of the Enquiry Officer before the Labour Court about the guilt of these five workmen and it was not, therefore, necessary

for the Labour Court to go into the question. This contention has been directly answered by a bench of this Court in Workmen, Employed in

Engine Valves Limited Vs. Engine Valves Limited, , where the learned Judges observed as follows:

This Court considers that, when Section 11-A had been incorporated with effect from 15th December, 1971, a Labour Court functioning under

the Act, is bound to apply such amendments which are carried our from time to time, irrespective of any plea raised pertaining to its jurisdiction. As

pointed out in the decisions above referred subsequent to introduction of Section 11-A when a jurisdiction had been conferred on the Tribunal to

satisfy itself about the correctness of the finding of misconduct, the Labour Court failed to exercise the jurisdiction enjoined upon it under the

provisions of the Act. It is not for a workman to plead an incidental and consequential relief, which is made available to him by statute, and no

management can be heard to plead that a statutory benefit should not be extended to an affected workman. Unless, as pointed out in Workmen of

Firestone Type and Rubber Company v. Management (supra), the Tribunal satisfies itself about the correctness of the finding, its award would be

illegal. Hence, this Court holds that a Labour Court suo motu has to apply Section 11-A, irrespective of whether a workman had mentioned the

said section or not, and pleaded for relief thereunder or not.

The award of the first respondent-Labour Court is, therefore, in violation of Section 11-A of the Industrial Disputes Act.

In view of my finding that the order of dismissal passed against the five workmen is highly discriminatory in as much as the fourteen other

workmen who have also been found guilty of the same charges have been reinstated in service, these 5 workmen have to be restored back to

service.

In the result, the writ petition is allowed, the award of the Labour Court dated 31-5-1982 in I.D.No. 18 of 1981 is set aside and the five

workmen viz., V. Srinivasan, K. Karunakaran. O.K. Vijayappan, M.S. Ponnuvelu and Mathew Moris are directed to be reinstated in service in

the same was and from the same date as the other 14 workmen. No costs.