Kerala High Court
Cochin Shipyard Ltd. vs Industrial Tribunal on 2 February, 2005
Equivalent citations: 2005(2)KLT760, (2005)IIILLJ46KER
Author: K. Balakrishnan Nair
Bench: K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
1. The petitioner, which is a Public Sector Undertaking, is challenging Ext.Pl award of the 1st respondent Industrial Tribunal. The brief facts of the case, as stated by the petitioner, are the following:--
2. A workman, named Mr. N.K. Ibrahim, was employed by the petitioner as Machinist, in its shipyard at Cochin. He was caught by the security personnel, when he was trying to take out surreptitiously, 1.75 litres of oil, in the tool box of his scooter. He admitted his guilt, to the security personnel and gave a written statement to that effect. Thereafter, disciplinary proceedings were initiated and a charge sheet was issued to him. He submitted his explanation, denying the charges. Though, he earlier admitted the theft committed by him, he denied the same in his reply. An enquiry was held into the charges of misconduct and upon finding him guilty of the charges, the disciplinary authority imposed the punishment of dismissal from service, after following the due procedure. Against the dismissal order, the workman availed the departmental remedy, by filing an appeal before the Appellate Authority. But, the appeal was also dismissed. The 2nd respondent Union raised an industrial dispute against the dismissal of the workman, which was referred for adjudication by the State Government.
3. Claim statement was filed by the Union and reply statement was filed by the Management, before the Tribunal. It was common case that the enquiry was conducted properly. So, the Tribunal proceeded to re-appraise the evidence adduced in the enquiry. The Union contended that the findings of the Enquiry Officer were perverse and that the workman had not committed any theft. The Tribunal upheld the finding of guilt, but, held that the punishment of dismissal was not justified, on the facts of the case and imposed a punishment of suspension for three years and directed reinstatement of the workman from 1.10.1998, by Ext.Pl award.
4. The petitioner attacks Ext.Pl award as illegal and passed without jurisdiction. When the finding of guilt regarding theft is proved, the punishment of dismissal from service is justified. The principles of Industrial Law, laid down by the Apex Court and the High Courts have been ignored by the Industrial Tribunal, while interfering with the punishment. The finding of the Tribunal that the Management did not prosecute the workman before the Criminal Court, therefore, it was not serious about the offence committed by the workman and so, the dismissal is unjustified, is perverse, warranting interference by this Court. The direction of the Tribunal, issued in exercise of its powers under Section 11A of the Industrial Disputes Act, is highly unreasonable and arbitrary. On the above grounds, the petitioner seeks to quash Ext.Pl award.
5. The respondents did not file any counter affidavit in this case.
6. I heard the learned counsel on both sides. The learned counsel for the petitioner relied on the decisions of the Apex Court in Janatha Bazar v. Secretary, S.N. Sangha, (2000) 7 SCC 517, Municipal Committee v. Krishnan Behari, (1996) 2 SCC 714, U.P.S.R.T.C. v. Basudeo Choudry, (1971) 11 SCC 320, Kerala Solvent Extractions Ltd. v. A. Unnikrishnan, (1994) 11 LLJ 888, C.M.C. Hospital Employees Union v. C.M.C. Vellore Association, 1988 (1) LLJ 263 and Regional Manager R.S.R.T.C. v. Ghanshyam Sharma, 2002 (1) LLJ 234. Reliance is also placed on the decision of this Court in Cochin Shipyard Ltd. v. Antony, 1989 Lab.I.C. 2220 (Ker.) and also the decisions of other High Courts in Wimco Sramic Union v. Seventh Industrial Tribunal, 1987 Lab.I.C. 77 and R.M. Parmar v. Gujarat Electricity Board, 1982 Lab.I.C. 1031. The learned counsel for the 2nd respondent Union submitted that Section 11A of the Industrial Disputes Act expressly authorises the Industrial Tribunal, to modify any punishment imposed by the Management, having regard to the facts of the case. In this case, the theft relates to 1.75 litres of oil and the punishment of dismissal from service was quite unjustified and disproportionate to the gravity of the offence. The Tribunal has correctly exercised its discretion, in modifying the punishment. Unless, it is shown that the decision of the Tribunal is perverse or one, which no man in his senses will take, this Court is not justified in interfering with the penalty imposed, it is submitted. He also relied on the decisions in Workmen v. Firestone Tyre and Rubber Co., AIR 1973 SC 1227, Scooters India Ltd. v. Labour Court, 1989 Supp. (1) SCC 31, Assistant General Manager, S.B.I. v. Thomas Jose, (2000) 10 SCC 280, Rama Kant Misra v. State of U.P., (1982) 3 SCC 346 and R.M. Parmar v. Gujarat Electricity Board, 1982 Lab.I.C. 1031.
7. The point to be decided in this O.P. is whether the Tribunal had properly exercised its powers under Section 11A of the Act while passing the impugned award.
Section 11A reads as follows :--
"Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen -- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court. Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.
Provided that in any proceeding under this section, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
The above provision clearly authorises the Tribunal to give appropriate reliefs to the workmen, including the award of any lesser punishment in lieu of discharge or dismissal from service, as the circumstance of the case may require. The objects and reasons for introducing the above provision by Act 45 of 1971 are extracted below:--
"In Indian Iron and Steel Co. Ltd. v. Their Workmen, 1958 (1) LLJ 260, the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has observed that in cases of dismissal for misconduct, the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc., on the part of the management.
2. The International Labour Organisation, in its recommendation (No. 119) concerning 'Termination of employment at the initiative of the employer' adopted in June 1983, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination, among others, to a neutral body such as an arbitrator, a Court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organisation has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages should be paid adequate compensation or afforded some other relief.
3. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power, in cases wherever necessary, to set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new Section 11A is proposed to be inserted in the Industrial Disputes Act, 1947."
The above statement of subjects and reasons, would show that the decision of the Apex Court in Indian Iron and Steel Co. Ltd. 's case that the Tribunal cannot act as a Court of Appeal and cannot substitute its own judgment, was one of the main reasons for introducing Section 11A of the Act. That means, the Parliament intended to give the power of an Appellate Court to the Tribunal, enabling it to substitute its own judgment for that of the Management, in the matter of punishment. The main contention of the learned counsel for the petitioner was that once the punishment of theft is proved, the Tribunal has no other option, but to approve the penalty of dismissal imposed by the Management. One of the fundamental principles of penology is that the punishment should be appropriate to the offence and also to the offender. Ancient Law givers of India have also dealt with the significance of imposing proper punishment. In Manu-smriti, 'Danda' (punishment) is treated as one, created by Brahma to protect all creatures for the sake of the King. It is further stated in Chapter VII of Manu-smriti as follows:--
"15. Through fear of him (Danda), all created beings, both the immovable and the movable, allow themselves to be enjoyed and swerve not from their duties.
16. Having fully considered the time and the place of the offence, the strength and the knowledge of the offender, let him (the King) justly inflict that punishment on men who act unjustly.
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18. Punishment alone governs all created beings, punishment alone protects them, punishment watches over them while they sleep; the wise declare punishment to be identical with the law.
19. If punishment is properly inflicted after due consideration, it makes all people happy; but inflicted without consideration, it destroys everything.
20. If the King did not, without tiring, inflict punishment on those worthy to be punished, the stronger would roast the weaker, like fish on a spit.
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22. The whole world is kept in order by punishment, for a guiltless man is hard to find; through fear of punishment the whole world yields the enjoyments which it owes.
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27. A King who properly inflicts punishment, prospers with respect to those three means of happiness; but he who is voluptuous, partial and deceitful will be destroyed, even through the unjust punishment which he inflicts."
From the above, it is clear that Manu had ordained that the King should punish the unjust, by imposing just punishment. The punishment should be appropriate to the offence, time and offender. Kautilya, in paragraphs 20 and 21 of Chapter 20, Book 3 of his Arthasasthra, speaks about imposing punishments, which should be appropriate to the persons concerned. Those paragraphs read as follows:--
"20. Special fines should be imposed according to the special nature of men and offences.
21. The head of a religious order, an ascetic, a sick person, one exhausted by hunger, thirst or a journey, a foreigner, one groaning under a fine and an indigent person should be shown leniency."
Again, in Book 4, Chapter II, in paragraphs 17-18, it is staled as follows:
"17-18. After taking into Mi consideration the person and the offence, the motive, seriousness or lightness of the offence, the consequences, the present effects and the place and time, the Magistrate shall fix the highest, the lowest and the middle in the matter of punishment, remaining neutral between the King and the subjects."
The above wise words of our ancient law givers hold good even now and can guide anyone, who is authorised to impose a punishment on others. They have held that the punishment chosen should be appropriate to the offender also. In other words, a mechanical imposition of punishment, based only on the offence proved, without regard to the offender, is not advocated by them,
8. Our Apex Court has repeatedly held that the punishment should be chosen, which is appropriate to the facts of the case. In Rama Kanta Mishra v. State of U.P., (1982) 3 SCC 346, the Apex Court has held as follows:-
"It is now crystal clear that the Labour Court .has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once at is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. And this Court is at present exercising jurisdiction under Article 136 over the decision of the Labour Court. Therefore, this Court can examine whether the Labour Court has properly approached the matter for exercising or refusing to exercise its power under Section 11A. Before we can exercise the discretion conferred by Section 11A, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. These words indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive. As stated earlier, it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of me offence charged."
9. In Scooters India Ltd. v. Labour Court, 1989 Supp.(1) SCC 31, the Honourable Supreme Court upheld the order of the Labour Court, interfering with the punishment of dismissal, imposing a lesser penalty. The relevant portion of the said decision reads as follows:-
"The High Court has considered at length the nature of the powers conferred on the Labour Court by Section 6(2-A) of the Act for setting aside an order of discharge or dismissal of a workman and substituting it with an order of lesser punishment and as such it cannot be said that the High Court has failed to consider the facts in their entirety, As regards the third contention, we may only state that the Labour Court was not unaware of the nature of the charges framed against the respondent or the findings rendered by the Inquiry Officer and the acceptance of those findings by the Disciplinary Authority. The Labour Court has observed as follows:--
The workman has unfortunately to blame himself for much of the bad blood which has developed between him and the management and therefore, his conduct, motivated by ideals which are not relevant has been far from satisfactory, insofar as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances, it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workman. I would make my award accordingly, but there shall be no order as to costs.' It cannot therefore, be said that the Labour Court had exercised its powers under Section 6(2-A) of the Act in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner company. It cannot therefore, be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers under Section 6(2-A) of the Act."
In this case, the Tribunal was interpreting Section 6(2-A) of the U.P. Industrial Disputes Act, 1947, which is identical to Section 11A of the Industrial Disputes Act.
10. Again in Assistant General Manager, S.B.I. v. Thomas Jose, (2000) 10 SCC 280, the Apex Court declined to interfere with an order of reinstatement of the Industrial Tribunal in favour of a workman, under Section 11A, found guilty of misappropriation of money, though the Apex Court slightly enhanced the punishment. The relevant portion of the judgment reads as follows:--
"In the aforestated case, in more or less similar circumstances, this Court declined to interfere with the view taken by the Labour Court that an errant workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of Scooters India Ltd. There is, in our view, a vital difference between an undertaking such as Scooters India Ltd. and the Bank. A Bank deals with public moneys. Misappropriation by an employee of a bank is misappropriation of public moneys and must be treated Very differently. Misconduct such as this cannot be treated as lightly as it has been done. We think that the appropriate order should at least have been of reinstatement without back wages plus a direction that the first respondent would not be entitled to any increments for a substantial period with all the cumulative consequences of such an order. That is the order that we propose to pass."
11. Going by the above decisions, it would appear that the Labour Court can, in appropriate cases, interfere with the punishment of dismissal, even if the proven offence relates to dishonest conduct of the employee. There cannot be any hard and fast Rule that once the misconduct of theft is proved, the dismissal will be automatic. The contentions of the learned counsel for the petitioner, to the contrary, cannot be accepted.
12. I feel that the decisions cited by the petitioner also, do not lay down any rigid Rule that where the misconduct of theft is proved, the punishment of dismissal should be awarded automatically. In Janatha Bazar v. Secretary, S.N. Sangha, (2000) 7 SCC 517, the Apex Court interfered with the lesser punishment imposed by the Tribunal, on an employee of a Co-operative Bank, who misappropriated goods worth more than Rs. 54,000/-. The Apex Court felt that on the facts of the case, the interference by the Labour Court with the punishment of dismissal, was unjustified. Another decision relied on by the petitioner is in Municipal Committee v. Krishnan Behari, (1996) 2 SCC 714. It was a case where the employee of a Municipality was convicted for the offence under Section 468 of the Indian Penal Code, for forgery. Though, the Municipal Committee dismissed him, the Director of Local Bodies, modified the punishment as to one of barring 4 increments. The said decision was interfered with by the Apex Court, restoring the punishment of dismissal. It is also a decision on the basis of the special facts of the case.
13. The decision in Kerala Solvent Extractions' case mentioned above, deals with a case, wherein a worker got employment, producing a false certificate regarding his educational qualification. The worker was terminated for fraudulent misrepresentation. The Labour Court ordered reinstatement of the workman. The High Court declined to interfere with it, but the Honourable Supreme Court interfered with the award of the Labour Court and observed that misplaced sympathy and generosity are unwarranted in this case. The decision in Ghanshyam Sharma 's case mentioned above, deals with the case of a conductor, who was found to carry 23 passengers without ticket. He had a history of earlier punishment also. The Labour Court interfered with the punishment. Though the learned Single Judge of this Court set aside the award, it was restored by the Division Bench. The Apex Court held that the misappropriation of money by the conductor of a Road Transport Corporation, cannot be tolerated and it restored the punishment imposed by the Corporation. These decisions also were rendered on the special facts of those cases. Further, the Apex Court has got wider powers under Article 142 of the Constitution of India in the matter of moulding appropriate reliefs.
Further, those decisions also do not lay down any rigid proposition, concerning the choice of penalty of dismissal. The decision in CMC Hospital Employees' Union's case deals with the question, whether the various provisions of the Industrial Disputes Act, including Section 11 A, will be applicable to minority educational institutions, in view of Article 30(1) of the Constitution of India. The Honourable Supreme Court held that those provisions do not interfere with the rights guaranteed under Article 30(1). While deciding the above question, the Apex Court also observed that the powers of the Industrial Tribunal are limited and even if those powers are exceeded, the same can be corrected in judicial review proceedings. So, the said decision does not have any application to the facts of this case.
14. The decisions of the High Courts cited by the learned counsel for the petitioner, are also distinguishable on the facts of those cases. At any rate, they do not lay down any binding principle that the moment theft is proved, the employee has to be dismissed, If the said interpretation of the petitioner is accepted, it would amount to amending the provisions of Section 11A of the I.D. Act, which is within the realm of the Legislature.
15. Further, this Court, while exercising the jurisdiction under Article 226 of the Constitution of India, can interfere with the decision of the Industrial Tribunal under Section 11A, only on limited grounds. This Court cannot substitute its decision for that of the Tribunal. This Court can interfere with the punishment, if only it is found mat the decision of the Tribunal is perverse or one, which no man in his senses will take. If this Court was exercising the power under Section 11A, it might have taken a different view, but the same is not a ground to interfere with the decision of the Tribunal, under Article 226 of the Constitution of India, in exercise of its power of judicial review. Lord Hailsham of St.Marylebone L.C. in Re. W. (An Infant) A.C. 682, has held that two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable man. So, the difference of opinion maintained by this Court, is not a ground to interfere with the decision of the Tribunal. It is true, the Tribunal's reasoning for interfering with the punishment, is slightly faulty. It was of the view that the petitioner did not take the offence seriously or prosecute the delinquent employee before the Criminal Court. Having dealt with the matter in a casual manner, it is not proper to impose the punishment of dismissal, opined the Tribunal.
16. The worker is not holding an office of trust. He is only an ordinary worker, engaged in the factory, as a Machinist. His qualification will, normally, be a pass in the I.T.I. Trade certificate. The theft involved is only that of 1.75 litres of engine oil. So, having regard to the nature of the offence and the offender, I feel that the punishment imposed by the Tribunal is justified on the facts of this case. Normally, under Article 226 of the Constitution of India, if this Court finds the reasoning of the Tribunal is not proper, while imposing the punishment, it should quash the decision and remit it to the Industrial Tribunal to take a fresh decision on the question of punishment. But, while exercising its power under Article 227, this Court can decide, what penalty should be appropriate on the facts of the case. I am of the view of that having regard to the facts of the case, the punishment imposed is not one, warranting interference under Article 227 of the Constitution of India. Though, for different reasons, I affirm the punishment imposed. The long years of suffering of the worker itself, is an additional punishment to him. If he again indulges in any misconduct, the sword of disciplinary power can be unsheathed and the fatal blow can be struck.
17. For all the above reasons, I decline to interfere with Ext.Pl and accordingly, the Original Petition is dismissed. On the facts and circumstances of the case, there shall be no order as to costs.
O.P. No. 443 of 199918. This O.P. is filed by the Cochin Shipyard Employees Association, challenging the very same award impugned in O.P.No. 18218/98. The reasoning given in that case, for not interfering with the award, will apply to this case also. Therefore, in view of the dismissal of that O.P., this Original Petition is also dismissed.