The Management of Chemplast Sanmar Limited v. Labour Court, Salem

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22..08..2008Coram :The Honourable Mr.Justice D.MURUGESANandThe Honourable Mr.Justice S. PALANIVELUW.A.No.2763 of 2004 and W.A.M.P.No.5108 of 2004 The Management of Chemplast Sanmar Limited8, Cathedral Road,Madras 86. .. Appellant(CT accepted vide order of Court dated 22.6.2004 in WAMP.No.4367/04)Vs1. The Presiding Officer, Labour Court, Salem2. A. Robert .. Respondents Writ Appeal under clause 15 of the letters patent to set asidethe order dated 19.04.2004 in W.P.No.8710 of 1995 presented to issuea Writ of Certiorari, calling for the records of the first Respondentin I.D.No.74/93 and quash his award dated 2.1.95. For Appellant : Mr. S. Ravindran for M/s. T.S. Gopalan & Co., For Respondents : Mr. D. Hariparanthaman for Mr.M. Muthupandian [for R-2] JUDGMENTS.PALANIVELU,J.The appellant management is situated at Mettur, Salem District,engaged in silicon metal (pure) Electronic grade in the form of poly,mone, ingets and waters. It was established in the year 1986 havingemployed about 61 workmen. The second respondent was employed as askilled worked in the Instrument Department on 1.12.1985 and was madepermanent on 1.12.1986. He was drawing total wages of Rs.1995/- permensem. https://hcservices.ecourts.gov.in/hcservices/

2. On 26.06.1992 while the second respondent was in the generalshift, one Venkatesan, a trade apprentice was also working in theshift, who is a squint eyed man. When the said Venkatesan wasworking in the department, after completion of his work at about 4.45p.m. he placed the level transmitter under the work table. TheEngineering Assistant by name Shankar asked Venkatesan to clean thediaphragm of the transmitter. However, the second respondent advisedVenkatesan that the transmitter should not be placed under the tableand asked him to keep the same in the shelf, for which Venkatesanresponded by nodding his head. The second respondent once againasked him to do the work. But Venkatesan, in reply, utteredmonosyllable word "um". Again Venkatesan was asked by the secondrespondent to keep the transmitter in the shelf for which Venkatesanstared at him and he continued to clean the diaphragm. Peeved atthis, the second respondent told him that he should not talk with himin that fashion and he further said that if he starred at him, hewould thrash him so as to make his eye to turn to other side.Venkatesan took exception to the language. In a moment, the secondrespondent slapped Venkatesan on his cheek. At that time, theEngineering Assistant Shankar advised him not to behave like thistowards an Apprentice. Ignoring his words, the second respondentslapped Venkatesan thrice.3. On 27.06.1992 charge sheet came to be issued to the secondrespondent charging him with misconduct under Standing Order 24(a.n). When the Charge sheet was served on the second respondent, herefused to receive it. Another charge memo dated 27.06.1992 was alsoissued for refusal to receive the communication from company underthe Standing Order 24 (a.h). Thereafter, both the charge sheets weredisplayed on the Notice Board.4. The second respondent submitted his explanation and being notcontent, the Management ordered a domestic enquiry. Three witnesseswere examined on behalf of the Management. They are Venkatesan,Sankar and one Sundaresan of Time Office. The second respondentexamined himself and did not examine any more witnesses. 5. After considering the statements of witnesses, the EnquiryOfficer came out with a finding on 04.09.1992 that the chargeslevelled against the second respondent stood proved. On 30.09.1992the appellant factory issued a show cause notice stating that in asmuch as the charges framed against him having been proved, he wasdismissed from service with effect from 12.11.1992.6. In the reference for the above said communication it ismentioned that his previous records were also scrutinised. While itwas referred in the body of the communication it is stated that when https://hcservices.ecourts.gov.in/hcservices/ his previous records were perused, there was no ground to take alenient view. Worthwhile it is to note, that the nature of thedelinquencies allegedly committed by the second respondent and thepenalties imposed on him therefor has not been shown. It is as vagueas possible. It does not guide the Court to learn about whetherthere was any previous misconduct on the part of the secondrespondent and the punishment visited by him. 7. The Labour Court by its award dated 02.01.1996, afterconsidering the materials on record, has exercised its jurisdictionunder Section 11(A) of the Industrial Disputes Act, by passing anaward directing the Management to reinstate the second respondentwithout back wages, but with the continuity of service, opining thatthe punishment of dismissal from service is not commensurate with themisconduct committed by the workman, that it was sufficient with lossof wages for about 25 months which would work out to Rs.50,000/- andthe said loss could be treated to be proportionate punishment for thedelinquency committed by him.8. The appellant carried the matter before this Court by filingW.P.No.8710 of 1995 challenging the award passed by the Labour Courtby contending that the nature of misconduct of the employee was gravewhich has caused adverse effect on the maintenance of discipline inthe unit, for which the said misconduct ought to be viewed strictly,failing which indiscipline could be encouraged resulting inindustrial unrest. It is the contention before the Court by Mr.S.Ravichandran, learned counsel for the appellant also. It is hisfurther contention that as for the power of Labour Court exercisableunder under Section 11(A) of the Industrial Disputes Act, it issignificantly limited and when once the charges have been found tohave been established, the Labour Court has no authority to interferewith quantum of punishment.9. Conversely, Mr.Hari Paranthaman, learned counsel appearingfor the second respondent would submit that even though the chargesframed against the second respondent were held to have been proved,it could not constitute a ground to award a major punishment ofdismissal from service which is shocking by disproportionate and theLabour Court has exercised its discretion in a legal and reasonableway and no interference is called for in the findings of the LabourCourt and also of the single Judge.10. It is acceptable that in order to maintain a peacefulatmosphere in the establishment concerned, the violent activities onthe part of anybody else have be be checked with iron hands so as tobring about the discipline in any industrial unit. If any suchviolent manner is noticed, the management has got over right to take https://hcservices.ecourts.gov.in/hcservices/ action against the delinquencies as per the certified standing ordersand may deal with them in accordance with settled procedure. Woefulindiscipline in the workplace could not be tolerated, if it leads tounrest and the order of dismissal for the same could not be treatedto be unduly harsh or disproportionate. The courts shall not bemisguided or misdirected while exercising their jurisdiction.Discipline at the workplace in an organisation is a sine quo non forefficient work in of the organisation which is expected to prevail.If the indiscipline alleged on the part of the workmen paves waypublic breach of the organisation, then it is not open to the Courtto hold the punishment of the dismissal awarded to them is shockinglydisproportionate to the proven charge.11. In the words of "Jack Chan" as their Lordships quoted in2005 (3) SCC 401 [M.P. Electricity Board vs. Jagdish Chandra Sharma],"Discipline is a form of civilly responsible behaviour which helpsmaintain social order and contributes to the preservation, if notadvancement, of collective interests of society at large."12. Both the learned counsel have argued at length referring tothe view point of the Apex Court on this subject. Learned counselfor the appellant while arguing strenuously, commented upon the powerof the Labour Court to interfere with the decision of the Management.He would cite 2006 (1) Supreme Court Cases 430 [Hombe GowdaEducational Trust and another vs. State of karnataka and others] inwhich the Supreme Court has held as follows:"19. Assaulting a superior at a workplaceamounts to an act of gross indiscipline. Therespondent is a teacher. Even under graveprovocation a teacher is not expected to abuse thehead of the institution in a filthy language andassault him with a chappal. Punishment of dismissalfrom services, therefore, cannot be said to bewholly disproportionate so as to shock one'sconscience."13. In 2005 (2) Supreme Court Cases 489 [Bharat Forge Co. Ltd.v. Uttam Manohar Nakate] it is held that the industrial Courts couldnot sit in appeal over the decision of the employer unless thereexisted a statutory provision in that behalf, though its jurisdictionis wide, but the same must be applied in terms of the provisions ofthe constitution and no other.14. In 2005 (3) SCC page 401 [M.P. Electricity Board vs. JagdishChandra Sharma], the Honourable Supreme Court while discussing withthe jurisdiction exercisable by the Labour Court has observed asunder: https://hcservices.ecourts.gov.in/hcservices/ "It was also held that the jurisdiction vestedwith the Labour court to interfere with punishment wasnot to be exercised capriciously and arbitrarily. Itwas necessary, in a case where the Labour Court findsthe charge proved, for a conclusion to be arrived atthat the punishment was shockingly disproportionate tothe nature of the charge found proved, before it couldinterfere to reduce the punishment.""The Tribunal or the Labour Court could notinterfere with the quantum of punishment based onirrational or extraneous factors and certainly not onwhat it considers a compassionate ground."15. Further the Honourable Supreme Court in the decisionreported in 2007(2) SCC 433 [J.K. Synthetics Ltd., vs. K.P. Agarwaland another] has held thus:"27. In this case, we have already found thatthe charge established against the employee was aserious one. The Labour Court did not record afinding that the punishment was harsh ordisproportionately excessive. It interfered withthe punishment only on the ground that theemployee had worked for four years without givingroom for any such complaint. It ignored theseriousness of the misconduct. That was notwarranted. The consistent view of this Court isthat in the absence of a finding that thepunishment was shockingly disproportionate to thegravity of the charge established, the LabourCourt should not interfere with the punishment.We therefore, hold that the punishment ofdismissal did not call for interference."16. While the facts of the present case are considered, theLabout Court has given a finding to the effect that there is nonecessity for the Management to award major penalty of dismissal andopined that the monetary loss caused to the workmen to the tune ofRs.50,000/- on account of his suspension would be a sufficientpunishment for his proved misconduct. In our considered view, thefinding of the Labour Court is sensible which fulfils the requirementof law above stated.17. Learned counsel for the appellant also draws our attentionto the decision reported in 2007 (I) LLJ 726 (Tata Engineering andLocomotive Co. Ltd., and N.K. Singh] where Their Lordships discussedabout the case that one Court staff who was assaulted by fists and https://hcservices.ecourts.gov.in/hcservices/ bricks by means of which he suffered serious injuries and after thedomestic enquiry, the delinquent was found guilty of his conduct andwas dismissed from service. The Honourable Supreme Court observedthat the Labour Court and the High Court have not found thatmisconduct was of any minor nature. On the contrary, the finding onthe facts that the acts complained of were esablished has not beendisturbed. That being so, the leniency shown by the Labour Court isclearly unwarranted and would in fact encourage indiscipline and thatwithout indicating any reason as to why it was felt that thepunishment was disproportionate, the Labour Court should not havepassed order in the manner done.Coming to the facts of thepresent case there is no material on record to show that by means ofthe misconduct there was unrest in the atmosphere in the Managementand the Labour Court has clearly indicated the reason as regards thegravity of punishment. It is to be noted that Venkatesan did notreceive any injuries at all. 18. The attention of this court was also drawn to the anotherdeceision of the Honourable Supreme Court reported in 2007(4) LLN 560[U.B.Gadhe and others and General Manager, Gujarat Ambuja Cement(Private) Ltd.,] in which it is held that when the workmen who weredismissed for resorting to cessation of work, strike, disorderlybehaviour, demonstration, committing nuisance, etc., that too in apublic utility service, they have to be dealt with seriously when thecharges have been proved in the enquiry and the Labour Court or theHigh Court should not extend misplaced sympathy in order to vary thepunishment, as imposed by the employer and the modification shouldnot be done in a casual manner. As for the case on hand, there is nosuch alarming or critical circumstance so as to make the court alertto the situation to put an end to the disorderly activities. In theabovesaid decision, the Apex Court has also observed that expansivejudicial mood of mistaken and misplaced compassion at the expense ofthe legitimacy of the process will eventually lead to mutuallyirreconcilable situation and denude the judicial process of itsdignity, authority, predictability and respectability.19. In 2000 (1) L.L.J. 273 [Senapathy Whiteley Ltd., vs. KaradiGowda and Another] it is held that, it is well settled that thepowers of the Labour Court under Section 11-A are wide and that it isopen to the High Court in justifiable cases to modify the order ofthe Labour Court and in lieu of the reinstatement, the payment of asum of Rs.2.50 lakhs to the workman will be paid within two months.20. In yet another case reported in 2007 (1) L.L.J. 569 [StateBank of Haryana vs.Devi Dutt and others] Honourable Supreme Court hasreiterated the legal principles already settled by the Court byholding as follows: https://hcservices.ecourts.gov.in/hcservices/ "8. The High Court ordinarily should not haveinterfered with the said finidng of fact. We,although, do not mean to suggest that the findings offact cannot be interfered with by the Superior Courtsin exercise of their jurisdiction under Article 226 ofthe Constitution of India, but the same should be doneupon application of the well known legal principlessuch as : (1) when it is perverse; (2) when wronglegal principles have been applied (3) when wrongquestions were posed; (4) when relevant facts have notbeen taken into consideration, or (5) the findingshave been arived at on the basis of the irrelevantfacts or on extraneous consideration."21. As far as the dictum laid down by the Supreme Court isconcerned, the Court has not definitely held that the finding of theenquiry officer was perverse with reference to the misconductcommitted. But in the present case, while considering the proprietyof the punishment, the Labour Court has fairly decided forreinstatement without backwages, with continuity of service.22. The main plank of the learned counsel for the appellant isthat in case, if the second respondent is inducted into serviceagain, it would certainly create chaos in the peaceful climate of theestablishment and that it was already expressed that any sum could bepaid to him in lieu of his reinstatement. Eventhough the submissionas regards the payment of money appears to be reasonable, still thewell settled principles have to be followed while dealing about theproportionality of the penalty awarded. As already stated there is nomaterial to show that because of incident, the atmosphere in thefactory got spoiled.23. Mr. Hariparanthaman, learned counsel for the respondentwould argue, citing the authorities of the Supreme Court wherein thelegal principles have been formulated in the matter of taking lenientview in the case involving misconduct of the workmen in 1989 (I)L.L.J. 71 [Scooter India Ltd., Lucknow vs. Labour Court, Lucknow andothers] the operative portion is found as under:“The Labour Court was not unaware of the nature ofthe charges, or the findings rendered by the enquiryofficer and the acceptance of those findings by theDisciplinary Authority. Considering all thecircumstances, it came to the conclusion that the endsof justice would be met if back wages to the extent of75 percent were allowed to the workman. It cannot be,therefore, be said that the Labour Court has exceeded https://hcservices.ecourts.gov.in/hcservices/ its powers under Section 6(2A) in an arbitrary manner.It has tempered justice with mercy by giving anopportunity to the erring workman to prove himself tobe a reformed and disciplined employee of thepetitioner-company.”24. In the above said case the charges against the workman werepertaining to the act of major misconduct and as many as three chargememos were issued to him which were proved as per the report of thefinding of the enquiry officer.25. The Apex Court held in 1996 (2) L.L.J. 335 [Palghat BPL &PSP Thozhilali Union vs. BPL India Ltd., and Anr.] thus:“6. In this case, the finding recorded by theHigh Court and the Labour Court is that stones werethrown and the officers were attacked which resultedin grievous injuries to the officers. But it is seenthat the appellants alone were not members of theassembly of the workmen standing at the BPL Bus Stop.The Labour Court had discretion under Section 11-A ofthe Industrial Disputes Act to consider the quantum ofmisconduct and the punishment. In veiw of the surgingcircumstances, viz., the workmen were agitating bytheir collective bargain for acceptance of theirdemands and when the strike was on, the settlementduring the conciliation proceedings, though initiallyagreed to, was raised later on. They appear to haveattacked the officers when they were going to theFactory. Under these circumstances the Labour Courtwas well justified in taking lenient view and insetting aside the order of dismissal and givingdirectioin to reinstate the workmen with a cut of 75%of the backwages upto the date of award. In ourconsidered view, the discretion exercised by theLabour Court is proper and justified in the abovefacts and circumstances. The High Curt had notadverted to these aspects of the matter. It merelyhad gone into the question whether the act complainedof is a misconduct.”26. In the said case the workmen have agitated and proceeded toattack the officers when they were going to the factory and theLabour Court took a lenient view of setting aside the dismissal orderand directed reinstatement of the employees with 25% of back wages.The said view was confirmed by the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/

27. Learned Counsel for the Second Respondent also placedreliance upon another decision reported in (2001) 9 Supreme CourtCases 609 [Kanhaiyalal Agrawal and others vs. Factory Manager,Gwalior Sugar Company Ltd.] in which it is held as under:“9. Substantial contention on the merits of thecase by the employer in these appeals is that thefinding of loss of confidence in the employee by theLabour Court has been reversed in appeal by theIndustrial Court on unreasonable grounds. What must bepleaded and proved to invoke the aforesaid principle isthat (i) the workman is holding a position of trust andconfidence (ii) by abusing such position, he commitsacts which results in forfeiting the same; and (iii) tocontinue him in service would be embarrassing andinconvenient to the employer or would be detrimental tothe discipline or security of the establishment. Allthese three aspects must be present to refusereinstatement on the ground of loss of confidence.Loss of confidence cannot be subjective based upon themind of the management. Objective facts which would belead to a definite inference of apprehension in themind of the management regarding trustworthiness orreliability of the employee must be alleged and proved.Else, the right of reinstatement ordinarily availableto the employee will be lost.”28. If the three tests formulated by the Apex Court were passed,then the Court is justified to vary from the findings and theproportionality of the punishment. As far as the present case isconcerned, the Court could justify the reasons of the Labour Courtfor the reason that it has satisfied the requirements contained inthe above three tests.29. In support of his contention learned counsel for theappllant cited the decision rendered by this Court in 1990 (I) L.L.N.770 [Tractors and Farm Equipment Ltd., Madras vs. R. Venkataraman andanother] in which it is held as follows:“The well-accepted principle on the question ofexercise of powers under S.11-A of the IndustrialDisputes Act, 1947, to evaluate the gravity ofmisconduct for the purpose of the punishment to beimposed on a workman is, that once that power has beenexercised, the High Court under Art. 226 of theConstitution of India, in the absence of any importantlegal principle , should not undertake to re-examine https://hcservices.ecourts.gov.in/hcservices/ the question of adequacy or inadequacy of thematerials for interference by Labour Courts.”30. The competency of this Court under Article 226 of theconstitution of India was discussed by this Court in the above saiddecision after referring to the well settled legal principles.Following the ratio laid down by the Supreme Court, and in theconsidered view of this Court as well, it is to be resolved that theLabour Court has properly appreciated the circumstance and decidedthe case as per the power exercisable under Section 11-A of theIndustrial Disputes Act and in view of the legal position, if thecourt intends to interfere with the decision of Labour Court, certainconditions are to be fulfilled. In our opinion, the decision of theLabour Court has conformed to the statutory prescriptions in thisregard and there is no reason to interfere with the same. In thiscontext, the outcome reached by the learned Single Judge isappropriate and there is no circumstance to disturb the finding. 31. We have bestowed our careful attention to the attendingcircumstances, of this case and followed the legal principles laiddown by the Supreme Court and arrived at a conclusion that thedismissal order would not stand for legal scrutiny which deserves tobe set aside. We find no reason to interfere with the finding of theLabour Court and no necessity to differ from the decision of thelearned Single Judge. The appeal suffers dismissal. 32. In fine, writ appeal is dismissed consequently, connectedM.P. is also dismissed.Sd/-Asst. Registrar/true copy/ggsSub Asst. RegistrarTo1. The Presiding Officer, Labour Court, Salem+1 cc to M/s. T.S. Gopalan & Co., Advocate, SR.No.47103 Judgement in: W.A.No.2763 of 2004 and W.A.M.P.No.5108 of 2004RL(CO)SMK/24.9.08