The Management of EvereadyIndustries India Ltd. v. The Presiding Officer,I Addl. Labour Court,Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 26..6..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. Nos. 42507 of 2002 & 14751 of 2007W.P.No.42507 of 2002The Management of EvereadyIndustries India Ltd.,(formerly known as Union Carbide (I) Ltd.,)1075, T.H. Road, Chennai 19rep. by its Sr. Manager-Personnel.. Petitionervs.1.The Presiding Officer,I Addl. Labour Court,Chennai.2.John Bosco.. RespondentsW.P.No.14751 of 2007John Bosco.. Petitionervs.1.The Presiding Officer,I Addl. Labour Court,Chennai.2.The Management of EvereadyIndustries India Ltd.,(formerly known as Union Carbide (I) Ltd.,)1075, T.H. Road, Chennai 19rep. by its Sr. Manager-Personnel .. RespondentsWrit Petition No.42507 of 2002 has been filed under Article 226of the Constitution of India seeking for issuance of writ ofCertiorari calling for the records of the first respondent inID.No.1030/91 and quash its award dated 26.8.2002. https://hcservices.ecourts.gov.in/hcservices/ Writ Petition No.14751 of 2007 has been filed under Article 226of the Constitution of India seeking for issuance of writ of Mandamusdirecting the 2nd respondent to pay full backwages with reinstatementas per the award dated 26.8.2002 passed in I.D.No.1030 of 1991, on thefile of I Addl. Labour Court, Chennai the Ist Respondent herein.For Management: Mr. Karthik for M/s.T.S. Gopalan & Co.For Workman: Mr.T. ArulrajCOMMON ORDERHeard the arguments of the learned counsel for the parties andhave perused the records.2.The Management, aggrieved by the Award dated 26.8.2002passed by the first respondent Labour Court in I.D. No. 1030 of 1991in granting reinstatement with 75% of the backwages, has filed W.P.No. 42507 of 2002.3.The petitioner in W.P. No. 14751 of 2007 is the workmanchallenging the Award of the first respondent Labour Court dated26.8.2002 made in I.D. No. 1030 of 1991 insofar as it denied 25% ofthe backwages while granting the relief of reinstatement. 4.Pending the writ petition, this Court granted the relief tothe workman under section 17-B of the Industrial Disputes Act, 1947[for short, 'I.D. Act'] by an order dated 18.8.2003 by which thepetitioner was paid every month Rs.2030/- from the date of the Awardtill the date of disposal of the writ petition. The petitioner hadreached the age of superannuation on 03.01.2004. By way of interimrelief, the petitioner had already been paid Rs.2,42,000/- and interms of Section 17-B of the I.D. Act, he had also so far receivedRs.1,54,450/-. The remaining backwages after deducting the saidamount comes to Rs. 3,03,000/- which has been directed to be depositedin the Indian Bank Extension Counter, High Court by the Labour Courtunder the reinvestment scheme. Thereafter, when the workman claimedinterest, that has also been directed to be withdrawn vide order dated18.02.2004. 5.It was after getting these amounts and after reaching theage of superannuation, the workman had decided to file a cross writpetition being W.P. No. 14751 of 2007 challenging that portion of theAward which denied 25% of the backwages to the workman. That writpetition was admitted on 23.4.2007 and directed to be posted alongwith the previous writ petition. https://hcservices.ecourts.gov.in/hcservices/

6.In view of the interconnectivity between these two writpetitions, the matters were heard together and a common order is beingpassed.7.At the outset, it must be stated that there is nojustification for entertaining the workman's writ petition at thisstage as it was filed after a period of five years from the date ofthe Award. During this period, the petitioner was in receipt oflump sum amount towards monthly wages under Section 17-B of the I.D.Act as well as withdrawal of periodical interest. He had alsoreached the age of superannuation on 03.01.2004. Therefore, nothingprevented the workman to file his writ petition at an earlier point oftime. 8.However, Mr. Arulraj, learned counsel appearing for theworkman contended that since the writ petition filed by the Managementis pending, the Court can hear the cross writ petition filed by theworkman without regard to the delay factor. This Court is unable toaccept the said plea. 9.The Supreme Court in its judgment in Uttar Pradesh StateRoad Transport Corporation v. Mitthu Singh [2006 (7) SCC 180]referred to several earlier decisions of the Supreme Court on thisissue and considered the issue relating to payment of backwages in theevent of the Labour Court coming to the conclusion about thetermination of the services of the workman being found unjustified.It is relevant to refer to Paragraphs 13 to 16 of the said judgmentwhich is reproduced below:-Para 13:"In G.M., Haryana Roadways v. Rudhan Singh this Courtheld that there is no rule of thumb that in each andevery case, where a finding is recorded by a court ortribunal that the order of termination of service wasillegal that an employee is entitled to full backwages. A host of factors must be taken into account.The Court stated: (SCC p. 596, para 8) “8. There is no rule of thumb that in everycase where the Industrial Tribunal gives a findingthat the termination of service was in violationof Section 25-F of the Act, entire back wagesshould be awarded. A host of factors like themanner and method of selection and appointmenti.e. whether after proper advertisement of thevacancy or inviting applications from theemployment exchange, nature of appointment,namely, whether ad hoc, short-term, daily wage,temporary or permanent in character, any specialqualification required for the job and the like https://hcservices.ecourts.gov.in/hcservices/ should be weighed and balanced in taking adecision regarding award of back wages. One of theimportant factors, which has to be taken intoconsideration, is the length of service, which theworkman had rendered with the employer. If theworkman has rendered a considerable period ofservice and his services are wrongfullyterminated, he may be awarded full or partial backwages keeping in view the fact that at his age andthe qualification possessed by him he may not bein a position to get another employment. However,where the total length of service rendered by aworkman is very small, the award of back wages forthe complete period i.e. from the date oftermination till the date of the award, which ourexperience shows is often quite large, would bewholly inappropriate. Another important factor,which requires to be taken into consideration isthe nature of employment. A regular service ofpermanent character cannot be compared to short orintermittent daily-wage employment though it maybe for 240 days in a calendar year.”Para 14:Again, in Allahabad Jal Sansthan v. Daya Shankar Raiafter considering the relevant cases on the point, theCourt stated: (SCC p. 130, para 16)“16. We have referred to certain decisions ofthis Court to highlight that earlier in the eventof an order of dismissal being set aside,reinstatement with full back wages was the usualresult. But now with the passage of time, it hascome to be realised that industry is beingcompelled to pay the workman for a period duringwhich he apparently contributed little or nothingat all, for a period that was spentunproductively, while the workman is beingcompelled to go back to a situation whichprevailed many years ago when he was dismissed. Itis necessary for us to develop a pragmaticapproach to problems dogging industrial relations.However, no just solution can be offered but thegolden mean may be arrived at.”Para 15:"Recently, in U.P. SRTC Ltd. v. Sarada Prasad Misra,one of us (C.K. Thakker, J.) had an occasion toconsider a similar issue. Referring to the earliercase-law, it was observed: (SCC p. 739, para 16)“16. From the above cases, it is clear thatno precise formula can be adopted nor ‘cast-iron https://hcservices.ecourts.gov.in/hcservices/ rule’ can be laid down as to when payment of fullback wages should be allowed by the court ortribunal. It depends upon the facts andcircumstances of each case. The approach of thecourt/ tribunal should not be rigid or mechanicalbut flexible and realistic. The court or tribunaldealing with cases of industrial disputes may findforce in the contention of the employee as toillegal termination of his services and may cometo the conclusion that the action has been takenotherwise than in accordance with law. In suchcases obviously, the workman would be entitled toreinstatement but the question regarding paymentof back wages would be independent of the firstquestion as to entitlement of reinstatement inservice. While considering and determining thesecond question, the court or tribunal wouldconsider all relevant circumstances referred toabove and keeping in view the principles ofjustice, equity and good conscience, should passan appropriate order.”Para 16:Thus, entitlement of a workman to get reinstatementdoes not necessarily result in payment of back wageswhich would be independent of reinstatement. Whiledealing with the prayer of back wages, factual scenarioand the principles of justice, equity and goodconscience have to be kept in view by an appropriatecourt/tribunal."10.In the light of the above legal precedents as well as theLabour Court, having found the workman guilty of rash behaviour,denied 25% backwages, this Court is not inclined to entertain the writpetition filed by the workman. Accordingly, W.P. No. 14751 of 2007is liable to be dismissed. 11.Mr. Karthick, learned counsel appearing for the Managementsubmitted that the Labour Court found that the domestic enquiryconducted by the Management was just, fair and proper and it is inaccordance with the principles of natural justice. The only issue tobe considered is whether the Labour Court was entitled to reappreciatethe evidence and come to a different conclusion.12.In this context, the learned counsel relied upon thejudgment of the Supreme Court in Divisional Controller, KarnatakaState Road Transport Corporation v. A.T. Mane [2005 (3) SCC 254] andparticularly emphasized the following passage found in paragraph 9which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ Para 9:"From the above it is clear that once a domestictribunal based on evidence comes to a particularconclusion, normally it is not open to the AppellateTribunals and courts to substitute their subjectiveopinion in the place of the one arrived at by thedomestic tribunal. In the present case, there isevidence of the inspector who checked the bus whichestablishes the misconduct of the respondent. Thedomestic tribunal accepted that evidence and found therespondent guilty. But the courts below misdirectedthemselves in insisting on the evidence of theticketless passengers to reject the said finding which,in our opinion, as held by this Court in the case ofRattan Singh is not a condition precedent. We mayherein note that the judgment of this Court in RattanSingh has since been followed by this Court in DevendraSwamy v. Karnataka SRTC."13.He further relied upon the judgment of the Supreme Court inDivisional Controller, N.E.K.R.T.C. v. H. Amaresh [2006 (6) SCC 187]and emphasized the passage found in paragraph 20 of the judgment whichis as follows:-Para 20:"Once a domestic tribunal based on evidence comes to aparticular conclusion normally it is not open to thetribunal and the courts to substitute their subjectiveopinion in place of the one arrived at by the domestictribunal." 14.He also submitted that the scope of interference with theAward of the Labour Court in exercising jurisdiction under Article 226of the Constitution of India though may be limited, but when an errorof fact, it can also be a subject matter of judicial review. 15.In this context, he referred to the judgment of the SupremeCourt in Cholan Roadways Ltd. v. G.Thirugnanasambandam [2005 (3) SCC241]. The learned counsel placed reliance upon paragraphs 34 and 35of the said judgment which may be usefully extracted below:-Para 34:"This decision also has no application to the facts ofthe present case. In the instant case, the PresidingOfficer, Industrial Tribunal as also the learned SingleJudge and the Division Bench of the High Courtmisdirected themselves in law insofar as they failed topose unto themselves correct questions. It is now wellsettled that a quasi-judicial authority must pose untoitself a correct question so as to arrive at a correctfinding of fact. A wrong question posed leads to awrong answer. In this case, furthermore, themisdirection in law committed by the IndustrialTribunal was apparent insofar as it did not apply the https://hcservices.ecourts.gov.in/hcservices/ principle of res ipsa loquitur which was relevant forthe purpose of this case and, thus, failed to take intoconsideration a relevant factor and furthermore tookinto consideration an irrelevant fact not germane fordetermining the issue, namely, that the passengers ofthe bus were mandatorily required to be examined. TheIndustrial Tribunal further failed to apply the correctstandard of proof in relation to a domestic enquiry,which is “preponderance of probability” and applied thestandard of proof required for a criminal trial. A casefor judicial review was, thus, clearly made out.Para 35:Errors of fact can also be a subject-matter of judicialreview. (See E. v. Secy. of State for the Home Deptt.)Reference in this connection may also be made to aninteresting article by Paul P. Craig, Q.C. titled“Judicial Review, Appeal and Factual Error” publishedin 2004 Public Law, p. 788."16.The learned counsel also submitted that the Supreme Courthas consistently deprecated the practice of the Labour Courtinterfering with the quantum of punishment while exercising powerunder Section 11A of the I.D. Act even in cases where the charges wereserious and related to using of abusive language and rash behaviour.In those cases, the Labour Court must approve the decision taken bythe employer in dismissing the workman. 17.Though several decisions of the High Court and the SupremeCourt were cited, there is no necessity to refer to them in extensiveand it is suffice to refer to only one decision of the Supreme Courtin Mahindra and Mahindra Ltd. v. N.B. Naravade [2005 (1) L.L.J.1129]. That was a case where the Supreme Court took theextraordinary step of interfering with the Award confirmed by thesingle Judge and the Division Bench of the High Court and disagreedwith the view taken by the three Courts below. Therefore, it isnecessary to refer to paragraphs 19 and 20 of the said judgment:-Para 19: "Learned counsel appearing for the respondent, however,contended that even though all Courts below in regard tothe factum of misconduct have held against the workman /respondent still rightly came to the conclusion that thepunishment of dismissal was too harsh a punishment andwas totally disproportionate to the misconduct proved.In support of this contention the learned counselpointed out from the award of the Labour Court that ithad taken into consideration that the respondent-workmanhad worked with the appellant company for a large numberof years and held that knowing the consequences ofdismissal he would have by now learnt a lesson not to https://hcservices.ecourts.gov.in/hcservices/ misbehave in future, hence, he must be given anopportunity to redeem himself. He submitted that theLabour Court with the said view in mind had reduced thepunishment. He also relied on the observation of thelearned single Judge that a punishment of dismissal forthe proved misconduct on the facts of this case wouldlead to miscarriage of justice and by reducing the saidpunishment workman has now received a proportionatepunishment. From the judgment of the Division Bench thelearned counsel pointed out that it has held that evenintemperate and abusive language would not be sufficientto warrant the punishment of dismissal. Relying onthese observations of the Courts below the learnedcounsel for the respondent-workman submitted that sincethe Courts below have taken a lenient view of the matterwhich is permissible under Section 1-A of the Act weshould not interfere with the orders of the Courts belowin altering the punishment.Para 20:It is no doubt true that after introduction of Section11-A in the Industrial Disputes Act, certain amount ofdiscretion is vested with the Labour Court/IndustrialTribunal in interfering with the quantum of punishmentawarded by the Management where the concerned workman isfound guilty of misconduct. The said area of discretionhas been very well defined by the various judgments ofthis Court referred to herein above and it is certainlynot unlimited as has been observed by the Division Benchof the High Court. The discretion which can beexercised under Section 11-A is available only on theexistence of certain factors like punishment beingdisproportionate to the gravity of misconduct so as todisturb the conscience of the Court, or the existence ofany mitigating circumstances which requires thereduction of the sentence, or the past conduct of theworkman which may persuade the Labour Court to reducethe punishment. In the absence of any such factorexisting, the Labour Court cannot by way of sympathyalone exercise the power under Section 11-A of the Actand reduce the punishment. As noticed herein aboveatleast in two of the cases cited before us, i.e. OrissaCement Ltd. (supra) and New Shorrock Mills (supra), thisCourt held: "punishment of dismissal for using ofabusive language cannot be held to be disproportionate."In this case all the for a below have held that thelanguage used by the workman was filthy. We too are ofthe opinion that the language used by the workman issuch that it cannot be tolerated by any civilizedsociety. Use of such abusive language against asuperior officer, that too not once but twice, in the https://hcservices.ecourts.gov.in/hcservices/ presence of his subordinates cannot be termed to be anindiscipline calling for lesser punishment in theabsence of any extenuating factor referred to hereinabove."18.Coming to the facts of this case, it is seen that twocharges were levelled against the workman relate to two incidents thattook place on 20.02.1988 and 22.02.1988. In the first instance, hewas charged about his questioning the authority disrespectfully forchanging the shift of one workman by name, S.Udhayakumar. A writtencomplaint was given in support of the said charge. M.W.5 Augustydeposed against the petitioner. In the domestic enquiry, it was heldto be proved by accepting the written complaint followed by the oralevidence of M.W.5. However, the Labour Court in paragraph 8 of theAward held as follows:-".... Though the evidence of M.W.5 is in accordancewith the complaint given by M.W.5 which is marked asEx.M.17, in the absence of any other piece of evidenceto corroborate the evidence of M.W.5 and M.W.6 thefindings of the enquiry officer that charge No.1 isproved is not fair and proper. Hence the finding ofthe enquiry officer holding that the first charge isproved is not in accordance with the evidence availableand hence the decision arrived at is not sustainable."19.In respect of the second charge that on 22.02.1988, when hewas shown some dust found in the Industrial Canteen, he abused theIndustrial Relation Officer. Witnesses were examined in support ofthe charges, viz., M.Ws.1 to 3 and the Labour Court held in paragraph10 which is as follows:-".... The respondent management has clinchingly provedthe 2nd charge as against the petitioner and thefindings of the enquiry officer which is marked asEx.M.29 in respect of 2nd charge is found to be just andproper and the decision arrived at in this regard isnot perverse and based only on material evidence bothoral and documents." 20.Therefore, the only question to be decided is whether theLabour Court was correct in disagreeing with the evidence recorded bythe Management in a validly conducted enquiry on the ground that therewas no corroboration for the evidence of M.W.1 and themselves. 21.This is not a case where the Labour Court disbelieved theevidence of either M.W.5 or M.W.6. But, on the contrary, itdisagreed with the finding of the Enquiry Officer solely on the groundthat there was no corroboration. Such a finding of the Labour Courtis not warranted. It is not that in every case corroboration wasrequired. It is not as if the Labour Court found that the finding https://hcservices.ecourts.gov.in/hcservices/ recorded by the Enquiry Officer in domestic enquiry is perverse.Therefore, the finding rendered in paragraph 8 with reference to thefirst charge of the Labour Court is highly improper and hence, theguilty of the workman should be found to be proved on both heads.22.Apart from the above fact, the Labour Court recorded theprevious history of the punishment imposed on the workman and thepast record of the workman was found reflected in the second show cause notice Ex. M.30. It containsseveral punishments given to the petitioner over the years and someof them include similar type of misconduct levelled against him.Therefore, once if the cumulative effect of both the charges havingbeen proved and the past records were also took into account by theemployer, it is very little that the Labour Court can do in suchmatters. 23.In this context, it is relevant to refer to the recentjudgment of the Supreme Court in J.K. Synthetics Ltd. v. K.P. Agrawal[2007 (2) SCC 433] and the following passage found in the saidjudgment may be usefully reproduced below:-"The Labour Court held that one serious charge wasproved, another charge was not proved and in regard tothe third charge gave "benefit of doubt" to theemployee. The charge established against the employeewas a serious one, that the first respondent made false(indecent) allegations against his superior officer,and thereby violated office discipline. The LabourCourt did not record a finding that the punishment washarsh or disproportionately excessive. It interferedwith the punishment only on the ground that theemployee had worked for four years without giving roomfor any such employment. It ignored the seriousness ofthe misconduct. That was not warranted. Theconsistent view of the Supreme Court is that in theabsence of a finding that the punishment was shockinglydisproportionate to the gravity of the chargeestablished, the Labour Court should not interfere withthe punishment. It is therefore held that thepunishment of dismissal did not call for interference."24.In the light of the above, the Award of the Labour Courtinsofar it granted the relief of reinstatement with 75% backwages isnot permissible especially when the charge of misconduct is found tobe proved and the punishment cannot be said to be disproportionate.Therefore, W.P. No. 42507 of 2002 will stand allowed and the Award ofthe Labour Court will stand set aside. However, the amount alreadypaid to the workman by way of interim order under Section 17-B of theI.D. Act will not be recovered from the workman. https://hcservices.ecourts.gov.in/hcservices/

25.In the result, W.P. No. 42507 of 2002 will stand allowed andW.P. No. 14751 of 2007 will stand dismissed. The Management isentitled to withdraw the amounts lying in deposit with the LabourCourt. However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriToThe Presiding Officer,I Addl. Labour Court,Chennai.2 cc To Mr.T.Arulraj, Advocate, SR.32486.1 cc To M/s.T.S.Gopalan & Co.,, Advocate, SR.32278.W. P. Nos. 42507of 2002 & 14751 of 2007 SS(CO)RVL 07.07.2008