The Management of Kanchi ThalivanNesavalar Kooturavu Urpathi MatrumVirapani Sangam Ltd v. 1. The Presiding Officer, Labour Court, Madurai - 20.2. Thiru G.Sivakaminathan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 12.07.2007CoramTHE HONOURABLE MR. JUSTICE K.MOHAN RAMW.P.No.9405 of 1998The Management of Kanchi ThalivanNesavalar Kooturavu Urpathi MatrumVirapani Sangam Ltd.,Mariamman Koil Street,Srivilliputhur - 626 125.... Petitioner-Vs.-1. The Presiding Officer, Labour Court, Madurai - 20.2. Thiru G.Sivakaminathan.... RespondentsPrayer:- Petition filed under Article 226 of the Constitutionof India for the issuance of a writ of certiorari to call forthe records of the first respondent in its I.D.No.480 of 1992dated 17.10.1997 and quash the same.For Petitioner : Mr. R.ParthibanFor Respondents: Mr. Srinivasa Raghavan, for R-2.- - -O R D E RBeing aggrieved by the award of the Labour Courtgranting the relief of compensation of Rs.35,000/- on theground of mercy, after holding that the charges levelledagainst the second respondent-workman have been proved, thepetitioner-Management has filed the above writ petition.2. Admittedly, the finding of the Labour Court has notbeen challenged by the second respondent. Therefore, the onlyquestion that arises for consideration in the above writpetition is whether the Labour Court in exercise of powersconferred under Section 11(A) of the Industrial Disputes Actcould have granted the relief of compensation of Rs.35,000/-.3. Mr.R.Parthiban, learned counsel for the petitioner,by relying upon the decisions reported in 2002 (1) L.L.N.1026(N.Kumaresan Vs. Presiding Officer, Labour Court and another)and 2001 (1) L.L.J. 253 (Cholan Roadways Corporation LimitedVs. M.Nagarajan), submitted that the Labour Court is notjustified in granting the relief of payment of ex-gratia of https://hcservices.ecourts.gov.in/hcservices/ Rs.35,000/- to the second respondent after holding the non-employment of the petitioner as justified.4. Per contra the learned counsel for the secondrespondent, by relying upon a decision of the Apex Courtreported in Volume 77-1990 F.J.R. 1 (Workmen of Bharat FritzWerner Vs. Their Workmen and Another) submitted thatconsidering the fact that the allegation against the secondrespondent was only that he abetted the commission of theoffence of theft, and he was not directly involved in theoffence the Labour Court has granted the ex-gratia payment ofRs.35,000/- and as such the discretion exercised by the LabourCourt cannot be said to be improper.5. In the decision reported in 2002 (1) L.L.N.1026(referred to supra), in paragraph 8, a Learned Judge of thisCourt has observed as follows:-"8. The next question that remains to beconsidered is as to whether the first respondentwas justified in granting the relief of paymentof ex gratia of Rs.25,000 to the petitioner. Itis too well settled that while exercise thepower under S.11A of the Industrial DisputesAct, first and foremost, the first respondentshould give a finding as to whether the non-employment was not justified so as to invoke thesaid power available under S.11A of theIndustrial Indusputes Act. When once the firstrespondent comes to a conclusion that the non-employment was justified, there is absolutely noscope for the first respondent to deal with theother question as to whether the punishment isdisproportionate or not. In other words, incases where the Labour Court comes to theconclusion that the non-employment was notjustified, there is every scope for interferingwith the punishment by invoking S.11A of theIndustrial Disputes Act. But when once thefirst respondent came to the conclusion that thenon-employment of the petitioner-workmen wasjustified, there is no jurisdiction for thefirst respondent to move forward and considerthe question about the adequacy of thepunishment imposed. Such being the legalposition, the award of the first respondent-Labour Court granting relief of a sum ofRs.25,000 by way of ex gratia is beyond itsjurisdiction. Therefore, the said part of theaward is liable to be set aside."6. In the decision reported in 2001 (1) L.L.J. 253(referred to supra) in paragraphs 7 and 8, it is observed asfollows:- https://hcservices.ecourts.gov.in/hcservices/ "7. .... It was upto the tribunal consider asto whether the punishment of dismissal wasadequate or not. In that behalf, the tribunalheld this workman should have retired on super-annuation even before 1990. Hence,reinstatement was not possible and desirable inthe circumstances of the case. It was in thatview, the tribunal awarded him the compensationof Rs.30,000. In my view, this is whollyincorrect. The Supreme Court has recentlytaken a view in U.P.State Road TransportCorporation Vs. Mahesh Kumar Mishra, 2000 (3)SCC 450 : 2000-I-LLJ-1113 that in such matters,when the conductors defraud the TransportCorporation by not issuing the tickets orissuing the false tickets, a light view shouldnot be taken. In that case, the Apex Courtapproved the strict view taken by the HighCourt. In the case on hand, though the amountof Rs.3.70 appears to be meagre, it has to beborne in mind that the concerned employee wasmaking number of trips every day and if in onetrip, he could deraud the Corporation byRs.3,70, the figure that he would be able todefraud the Corporation would be staggering.8. In my view, the punishment of dismissal istherefore apt which was given by themanagement."7. In the decision reported in Volume 77-1990 F.J.R. 1(referred to supra) the misconduct that was found establishedagainst the workman involved threatening the highest executiveviz., the President of the Company, with dire consequences,wrongfully confining him in his room and compelling him towithdraw the notice. Three of the workmen were office bearersof the Union and after observing that these workmen cannot besaid to have acted at the instigation of somebody and takinginto consideration the facts and circumstances of the case andkeeping in view the interests of the industry, the Apex Courtfelt that it is not desirable and expedient to directreinstatement of the workmen and accordingly affirmed thejudgment of the High Court and therefore, set-aside thedirection relating to reinstatement of the workmen but insteaddirected payment of compensation for loss of futureemployment.8. Learned counsel for the second respondent by relyingupon the decision reported in Volume 77-1990 F.J.R. 1(referred to supra) submitted that though the charges levelledagainst the second respondent have been proved, consideringthe facts and circumstances of the case, the Labour Court hastaken a sympathetic view and directed the payment ofRs.35,000/- on the ground of mercy and as such, such adirection may not be interfered with by this Court. https://hcservices.ecourts.gov.in/hcservices/

9. I have carefully considered the submissions made oneither side and the materials available on record.10. The facts of the case on hand and the facts of thecase reported in Volume 77-1990 F.J.R. 1 (referred to supra)are totally different. The charges levelled against thesecond respondent in this case is that he abetted thecommission of theft. The said charge has been found to beproved and that finding has become final. It is settled lawthat when the Labour Court comes to the conclusion that thenon-employment was not justified, there is every scope forinterfering with the punishment by invoking Section 11A of theIndustrial Disputes Act but once the Labour Court comes to theconclusion that the non-employment of the workman wasjustified, there is absolutely no jurisdiction for the LabourCourt to move forward and consider the question of adequacy ofthe punishment imposed. The said legal proposition has beenreiterated by this Court in the above said two decisions. 11. Recently the Apex Court has held in the case ofKarnataka Bank Limited Vs. A.L.Mohan Rao and reported in 2006(1) S.C.C. 63 that it is for the Disciplinary Authority todecide what is the fit punishment to be imposed. Following thesame, a Division Bench of this Court in the judgment renderedin W.A.No.2272 of 2000 has held that it is the prerogative ofthe management to impose appropriate punishment once themisconduct is proved and such a punishment imposed cannot beinterfered with by the Courts on the ground of misplacedsympathy, especially when the misconduct relates to dishonestyof the workmen. 12. In the judgment reported in 2003(4) S.C.C. 364(CHAIRMAN & MANAGING DIRECTOR, UNITED COMMERCIAL BANK v. P.C.KAKKAR), the Supreme Court in dealing with the punishmentinflicted on an employee of the Bank, has observed as here-under:-"A bank officer is required to exercisehigher standards of honesty and integrity.Every officer/employee of the bank isrequired to take all possible steps toproject the interests of the bank and todischarge his duties with utmost integrity,honesty, devotion and diligence and to donothing which is unbecoming of a bankofficer. Good conduct and discipline areinseparable from the functioning of everyofficer/employee of the bank."Recently in the judgment reported in AIR 2007 Supreme CourtWeekly 3656 (UCO BANK v. RAJINDER LAL CAPOOR) in dealing withthe punishment imposed on a Bank employee, the Supreme Courtobserved that "the officers of the bank enjoys a part ofconfidence in them and when an employee of the bank is foundto have embezzled or misappropriated any amount etc., the https://hcservices.ecourts.gov.in/hcservices/ Court takes a strict view of the matter."13. If the case on hand is considered in the light ofthe law laid down in the above said decisions, it could beseen when the second respondent who enjoys a part ofconfidence in him while he was holding a responsible positionin the petitioner-sangam has betrayed the confidence reposedon him by the Sangam, the Sangam cannot be expected to showany sympathy to the second respondent. Therefore, this Courtis of the considered view that the Labour Court has committedan error in awarding the ex-gratia payment of Rs.35,000/-after recording a finding that the misconduct on the part ofthe second respondent has been proved. 14. In such view of the matter, the award of the LabourCourt is set-aside and the writ petition is allowed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar ToThe Presiding Officer,Labour Court,Madurai - 20.+1cc to Mr.R.Parthiban, Advocate Sr 42922+1c to Mr.T.Srinivasaraghavan, Advocate Sr 42274KSJ (CO)km/23.7.W.P.No.9405 of 1998