Madras High Court
The Management Of City Knitting Company vs K.K.Selvaraj on 9 March, 2010
Author: R.Banumathi
Bench: R.Banumathi, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Writ Appeal Nos.2115 to 2134 of 2000
W.A.No.2115 of 2000:
The Management of City Knitting Company
No.2/6, Padmavathipuram,
Angeripalayam Road,
Tiruppur-638 603. ... Appellant in
W.A.No.2115/2000
vs.
1. K.K.Selvaraj
2. M.Rangasamy
3. S.Thangamani
4. J.Moorthy
5. R.Murugesan
6. P.Jothisankar
7. V.R.Shanmugam
8. K.Thirumalaisamy
9. Kondappan
10. R.Chinnamuthu
11. M.Revathy
12. R.Marimuthu
13. M.Eswari
14. S.Palanisamy
15. P.Murari
16. S.Elango
17. P.Palanisamy
18. K.V.Ravi
19. R.Annadurai
20. The Appellate Authority under the
Tamil Nadu Payment of Subsistence
Allowance Act (Deputy Commissioner
of Labour), Coimbatore-641 012.
21. The Controlling Authority under the
Tamil Nadu Payment of Subsistence
Allowance Act, Assistant Commissioner
of Labour, Coimbatore-641 012. .... Respondents in
W.A.No.2115/2000
W.A.Nos.2116 to 2134 of 2000:
The Management of City Knitting Company
No.2/6, Padmavathipuram,
Angeripalayam Road,
Tiruppur-638 603. ... Appellants in
W.A.Nos.2116 to 2134/2000.
vs.
K.K.Selvaraj ... 1st Respondent in
W.A.No.2116/2000
R.Annadurai ... 1st Respondent in
W.A.No.2117/2000
R.Murugesan ... 1st Respondent in
W.A.No.2118/2000
K.Thirumalaisamy ... 1st Respondent in
W.A.No.2119/2000
S.Elango ... 1st Respondent in
W.A.No.2120/2000
S.Thangamani ... 1st Respondent in
W.A.No.2121/2000
S.Palanisamy ... 1st Respondent in
W.A.No.2122/2000
M.Rangasamy ... 1st Respondent in
W.A.No.2123/2000
R.Chinnamuthu ... 1st Respondent in
W.A.No.2124/2000
J.Moorthy ... 1st Respondent in
W.A.No.2125/2000
R.Marimuthu ... 1st Respondent in
W.A.No.2126/2000
P.Palanisamy ... 1st Respondent in
W.A.No.2127/2000
M.Kondappan ... 1st Respondent in
W.A.No.2128/2000
P.Jothikumar ... 1st Respondent in
W.A.No.2129/2000
K.V.Ravi ... 1st Respondent in
W.A.No.2130/2000
Revathi ... 1st Respondent in
W.A.No.2131/2000
M.Eswari ... 1st Respondent in
W.A.No.2132/2000
V.R.Shanmugham ... 1st Respondent in
W.A.No.2133/2000
P.Murari ... 1st Respondent in
W.A.No.2134/2000
The Presiding Officer,
Labour Court, Coimbatore. ... 2nd Respondent in all
Appeals.
Prayer: W.A.No.2115 of 2000 filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.No.13365 of 1992 dated 28.07.2000.
Prayer: W.A.Nos.2116 to 2134 of 2000 filed under Clause 15 of the Letters Patent against the common order of the learned single Judge made in W.P.Nos. 20860, 20957 to 20962, 21036 to 21041 and 21098 to 21103 of 1993 dated 28.07.2000.
For Appellants : Mr.R.Gandhi
in all appeals Senior Counsel
for
Mr.R.G.Narendhiran
For R1 to R19 in
W.A.No.2115/2000
and 1st Respondent : Mr.V.Ajoy Khose
in W.A.Nos.
2116 to 2134/2000
For 2nd Respondent : Mr.A.Arumugham,
in W.A.Nos.2116 to Spl. Government Pleader (W)
2134/2000
COMMON JUDGMENT
R.BANUMATHI,J These Writ Appeals arise out of the common order of the learned single Judge in W.P.Nos.20860, 20957 to 20962, 21036 to 21041 and 21098 to 21103 of 1993 quashing the Award of the Labour Court and ordering reinstatement of workmen with back wages. W.A.No.2115/2000 has been filed agianst the order of learned single Judge in W.P.No.13365/1992 dated 28.07.2000. Management is the Appellant in these Appeals. Since, the issue involved in these Batch of Writ Appeals are one and the same, all the Writ Appeals were taken up together and disposed of by this common Judgment.
2. The case of Workmen is that they are the permanent employees of Appellant Management City Knitting Company, Tiruppur and they are the active members of Banian and Pothu Thozhilalar Sangam affiliated to CITU. Further case of Workmen is that over the dispute of distribution of bonus, Appellant Management refused work to the Respondents Workmen with effect from 11.11.1988 which resulted in raising of Industrial Dispute before the Labour Officer on 01.12.1988 requesting for restoration of work. The Labour Officer advised the Appellant Management to restore the Respondents Workmen to duty. But in the mean time, on 07.12.1988, the Management suspended the Respondents Workmen and issued show cause notice by levelling some charges and enquiry was fixed on 28.04.1989. According to Respondents Workmen, no enquiry was held on that date and again the date was fixed on 04.05.1989. Even on that date, no enquiry was held and it was adjourned. Case of Respondents Workmen is that there was no notice with regard to the enquiry. In the mean time, the Appellant Management sent an intimation on 11.10.1989 to the Respondents Workmen that their services were terminated by discharge simpliciter, that too, with retrospective effect from 11.11.1988. Thereafter, Respondents Workmen approached Conciliation Officer for mediation. Since conciliation failed, Respondents Workmen have filed Claim Petitions before the Labour Court.
3. In the Labour Court, Appellant Management appeared and contested the claim contending that the Respondents Workmen were on strike from 11.11.1988 and on 07.12.1988, the workmen entered into the premises and created indiscipline disorder and notice was issued to them on 07.12.1988 stating that they should not enter into the premises of Appellant company. Further case of Appellant Management is that inspite of such notice, Respondents Workmen stayed inside the premises of the factory without doing any work and it is only after the intervention of the Police, Respondents Workmen left the premises of the factory. Further case of Management is that after issuing show cause notice, enquiry was initiated, but the enquiry could not be completed because of the lack of co-operation by the striking workers. According to the Appellant Management, because of the strike considerable loss has been caused to the Appellant company and they lost valuable Export orders. Case of Management is that taking all these factors into consideration, it was decided to terminate the services of the Respondents Workmen by order dated 11.10.1989 and the Respondents Workmen were paid a month's wages in lieu of notice and also compensation in accordance with law and therefore the discharge simpliciter is justified.
4. In the Labour Court, onbehalf of Respondents Workmen one Rangasamy was examined as WW1 and Exs.W1 to W13 were marked. Onbehalf of the Management one of the partner by name Balasubramaniam was examined as MW1 and Exs.M1 to M21 were marked as Management documents. Upon consideration of evidence, Labour Court dismissed the Claim Petitions holding that the orders of discharge simpliciter were justified on the ground that due to their illegal strike, the Appellant Management has lost about Rs.45,00,000/-. Labour Court further directed the Appellant Management to make payment of their due entitlement in lieu of termination and also directed the Management to make payment of Rs.5000/- each to the workers who have put in more than five years of service and Rs.2500/- each for the workmen who have put out in less than five years of service.
5. Challenging the order of the Labour Court, Respondents Workmen filed the Writ Petitions contending that the term 'discharge simpliciter' is misnomer and Labour Court failed to see that it was a case of dismissal for misconduct even as per the showing of the Management. The Appellant Management entered appearance in the Writ Petitions and contested the Writ Petitions.
6. By the common order dated 28.07.2000, the learned single Judge held that the surrounding circumstances do not indicate that the workmen have abstained from work from 11.11.1988 and only on service of suspension order dated 07.12.1988 to workmen persisted by sending letters to the Management for subsistence allowance and till then the workmen were trying their best to resume work by approaching both Labour Officer and Management. Learned single Judge further held that without any material, Labour Court arrived at a wrong conclusion that there was a strike. Learned single Judge also observed that when there was accusation that from 11.11.1988, the workmen did not attend the work and that they have misconducted themselves on 07.12.1988, Labour Court should have gone into that aspect in order to find out whether actually the workmen voluntarily abstained from work from 11.11.1988 and acted unlawfully on 07.12.1988 infront of the factory premises. Observing that there was no proper exercise of the discretion vested in the Labour Court under Sec.11-A of the I.D.Act, the learned single Judge quashed the order of Labour Court and allowed the Writ Petitions directing reinstatement with back wages. The order of learned single Judge directing reinstatement with back wages is challenged in these Writ Appeals.
7. Onbehalf of the Appellant Management Mr.R.Gandhi, learned Senior Counsel contended that the workmen were non-cooperative and struck work and left with no other option, terminated the services simpliciter. It was further argued that the Labour Court has gone into the evidence and analysed the matter and while so, the learned single Judge was not right in substituting its own views. It was further argued that there was a loss to the Mill to the tune of Rs.45,00,000/- which is based upon the evidence. While so, the learned single Judge was not right in saying that the loss was not a relevant issue. Learned Senior Counsel for Appellant Management would further submit that unless the Labour Court ignored material evidence or its finding based upon no evidence, the High Court can interfere with the factual findings recorded by the Labour Court.
8. Drawing our attention to the order of the learned single Judge, Mr.Ajoy Khose, learned counsel for Respondents workmen submitted that there is perversity in the order of the Labour Court and while so, the learned single Judge rightly interfered with the order. It was further argued that termination order dated 11.10.1989 even though termed as 'termination simpliciter', it was actually punitive. It was further argued that the only person examined before the Labour Court is MW1 and no other witness was examined and no vital documents were marked on the side of the Appellant Management and while so, the Labour Court erred in accepting the plea of Management that it was only 'termination simpliciter'.
9. The 2nd Respondent/Labour Court found that termination simpliciter is not wrongful and is bonafide and justified and not a measure of unfair labour practice. Whether the award of Labour Court suffers from perversity justifying interference by the High Court is the point falling for consideration in these Batch of Writ Appeals.
10. Before dealing with the contentions canvassed, we may remind ourselves the well settled principles. Tribunal/Labour Court's wide power to make appropriate award is not ordinarily open to interference by the High Court. In (1998) 9 SCC 220 [UPSRTC and other v. Har Narain Singh and others], the Supreme Court held that exercising jurisdiction under Article 226 of Constitution of India, the High Court is not sitting in appeal over the findings of disciplinary authority/Labour Court. Considering the scope of interference under Article 227 of Constitution, in (1984) 3 SCC 5 [Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhavan Limited and another], the Supreme Court held as under:-
"4. Under Section 11-A of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well-accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. ......"
11. In (2006) 13 SCC 32 [State of Haryana and others v. Devi Dutt and others], the Supreme Court laid down the legal principles/circumstances under which the High Court can interfere with the findings of fact as under:-
"8. The High Court ordinarily should not have interfered with the said finding of fact. We, although, do not mean to suggest that the findings of fact cannot be interfered with by the superior courts in exercise of their jurisdiction under Article 226 of the Constitution of India, but the same should be done upon application of the well-known legal principles such as (1) when it is perverse; (2) when wrong legal principles have been applied; (3) when wrong questions were posed; (4) when relevant facts have not been taken into consideration; or (5) the findings have been arrived at on the basis of the irrelevant facts or on extraneous consideration."
12. Contending that the High Court cannot interfere with the findings of Labour Court, the learned Senior Counsel placed reliance upon (2006) 6 SCCC 325 [Amrrit Vanaspati Company Limited v. Khem Chand and another] wherein the Supreme Court held as under:-
"9. ..... In our opinion, the High Court while exercising powers under writ jurisdiction cannot deal with aspects like whether the quantum of punishment meted out by the management to a workman for a particular misconduct is sufficient or not. This apart, the High Court while exercising powers under the writ jurisdiction cannot interfere with the factual findings of the Labour Court which are based on appreciation of facts adduced before it by leading evidence. In our opinion, the High Court has gravely erred in holding that the evidence of Respondent 1 was not considered by the Labour Court and had returned the finding that the evidence of Respondent 1 did not inspire any confidence. We are of the opinion that the High Court is not right in interfering with the well-considered order passed by the Labour Court confirming the order of dismissal."
13. It is fairly well settled that scope of interference by the High Court is limited. But if the order of Labour Court is vitiated by fundamental flaws, absence of legal evidence, perverse, misreading of facts, serious errors of law on the order, jurisdictional failure and the like, the High Court can certainly interfere.
14. Ofcourse, the High Court is not entitled to act as an Appellate Court. But nevertheless, such finding also may be amenable to judicial review if the Tribunal had (i) erroneously refused to admit admissible and material evidence, or (ii) erroneously admitted inadmissible evidence which has influenced the impugned finding, or (iii) if the finding of fact is based on 'no evidence'; that would be regarded as an error of law which can be corrected by a writ of certiorari. The Writ Court does not function as an Appellate Authority and cannot set aside or quash the finding of fact on the basis of assessment of evidence, unless it is a case of 'no evidence'. It cannot go into the question of sufficiency or credibility of evidence. The questions of adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from such evidence are within the exclusive jurisdiction of the tribunal. In other words, a finding of fact may be interfered with by a reviewing court where it is either based on 'no evidence' or it is of such a nature as no reasonable person could have arrived at on the basis of the material before it. But 'no evidence' does not necessarily mean a complete absence of evidence. The question is whether the evidence, taken as a whole, is reasonably capable of supporting the finding. In other words, the test for determining the question whether there is 'no evidence' at all or the evidence is 'sufficient or adequate' is to see whether the evidence on record as a whole is 'reasonably capable of supporting the conclusion'. Exercising jurisdiction under Article 227 of Constitution whenever the finding is based on 'no evidence' or 'findings suffered from infirmity', the High Court certainly interfere.
15. Bearing the above principles in mind, we have considered the order of the learned single Judge and the rival submissions made on either side. The learned single Judge has chronologically referred to the facts and events and it is not necessary for us to elaborate the facts in detail. The workers in the Appellant Company affiliated to several political parties. Respondents/Workmen are the members of Banian Pothu Thozhilalar Sangam affiliated to CITU. On 25.1.1988, all the workmen belong to various Unions agitated against the Appellant Management demanding for making 15 temporary workmen as permanent workmen. Ultimately, after conciliation, all the workmen were resumed work from 05.4.1988 and Deepavali bonus was distributed on 11.11.1988. Since the exact amount fixed for bonus was not disbursed to the Respondents/Workmen, they refused to receive the said sum, which resulted the Appellant Management refused to give work to the Respondents Workmen. Consequently, the Respondents Workmen raised an industrial dispute before the Labour Court on 01.12.1988 requesting for a direction for restoration of the duty. In respect of industrial disputes before the Labour Officer, conciliation notice was sent on 02.12.1988 calling upon the Management to appear for enquiry on 06.12.1988. The representative of Appellant Management appeared for enquiry and took adjournment and the conciliation proceedings was adjourned to 09.02.1988.
16. When the conciliation proceedings was pending so before the Labour Officer, on 07.12.1988 Appellant Management issued a charge memo to the workmen with reference to the alleged misconduct in the factory premises on 07.12.1988 alleging misconduct of trespass into the premises and prevent the entry of the vehicles into the premises and also attempted to obstruct the other workers. In the said charge memo, Appellant Management directed the workmen not to come to the factory to attend the work till the enquiry for the above said charge was over. On 07.12.1988, Appellant Management also passed an order suspending the services of the workmen. In view of the stand taken by the Management levelling charge against the workmen pending enquiry, Labour Officer closed his file. After show cause notice, Appellant Management terminated the services of the workmen on 11.10.1989 by terming it as 'discharge simpliciter'.
17. Learned Senior Counsel for Appellant Management submitted that the workmen were not permanent employees and were only piece rate workers and that when there was no work in the Appellant factory, they will be working in other industries on their own and engaged in other work. Contention of the Appellant Management is that the workmen never worked continuously for 240 days in a year. The above contention does not merit acceptance. In the Award, the Labour Court has clearly recorded the finding of fact that Respondents Workmen are permanent workmen and all of them who are working in the Appellant Company for more than 9 years and some of them for 4 5 years. In its order the Labour Court has recorded clear finding that all the workmen excepting one Thangamani, Moorthy and Revathi were paid Rs.192/- per week. Thangamani and Moorthy were paid Rs.144/- per week and Revathi was paid Rs.96/- per week. Labour Court has also pointed out that apart from regular weekly wages, for cutting, ironing and packing, the Respondents Workmen were also paid on piece rate basis and the workmen were getting about Rs.100/- to Rs.150/- as incentive for the work done by them on piece rate. Having regard to the findings of fact by Labour Court, in our considered view that there is no substance in the contention of the Appellant Management that the Respondents Workmen were not permanent employees.
18. The Managing Partner of Appellant company was examined as MW1. Previously there was a strike from 25.01.1988 to 05.4.1988 demanding permanent status of about 15 workmen and thereafter the workmen resumed work. In his evidence, MW1 has stated that because of the illegal strike, Appellant Company suffered loss to the tune of Rs.45,00,000/- and that the export orders were cancelled. In his evidence, one of the workman Rangasamy who was examined as WW1 has stated that since the period from 25.1.1988 to 05.4.1988 was not included for calculating the bonus, they insisted for taking that period to be taken into account for calculating the bonus. In his evidence, WW1 has further stated that they refused to receive the bonus and stated that they would receive bonus after the talks and that MW1 insisted to receive the bonus. In his evidence, WW1 has further stated that the Management insisted them to receive the bonus and if they do not receive the bonus asking them to go out of the premises and it was only thereafter, they made an application before the Labour Officer for conciliation for resumption of work.
19. Per contra, in his evidence MW1 has stated that after talks with various Unions, the bonus amount was disbursed and the same was received by all the workers. But only the Respondents Workmen refused to receive the bonus amount, since the amount for the strike period was deducted. MW1 has further stated that the workmen refused to receive the bonus amount and struck the work and without getting bonus amount, Respondents Workmen left to the factory on 11.11.1988 and subsequently they never resumed work. MW1 has further stated that on 07.12.1988, Respondents Workmen trespassed into the factory premises and created the situation causing breach of peace and preventing entry of vehicles carrying the stocks into the factory premises. Management brought the police for intervention and only after intervention of the police, the illegal activities of the workmen were thwarted.
20. In his evidence, MW1 has stated that because of the illegal strike, Appellant company could not meet out their export commitment in time and thereby the export orders were cancelled which resulted in not only incurring loss to the tune of Rs.45,00,000/- and reputation of the Appellant also eroded in the export market. Labour Court found that non-employment or termination through 'discharge simpliciter' is justified on the ground that there was illegal strike by the employees due to which there was loss to the tune of Rs.45,00,000/-. As pointed out by the learned single Judge, the finding of Labour Court that termination is justified since there was loss to the tune of Rs.45,00,000/- due to illegal strike is wrong. As pointed out by the learned single Judge, strike by the workers was for the period from 25.1.1988 to 05.4.1988. Strike during that period was not at all the subject matter of this proceeding, since the subject matter relates to the occurrence on 11.11.1988 and the alleged misconduct on 07.12.1988. It is not the case of the Appellant Management that any loss was caused to the Management after 11.11.1988. The Labour Court has taken into account the extraneous matter which was not connected to the termination to justify the dismissal of the Respondents Workmen. In our considered view, the learned single Judge was right in holding that it was an error committed by the Labour Court as it was not the subject matter of termination.
21. In any event, the strike between 25.01.1988 and 05.04.1988 the entire Workmen in the factory who are said to have participated and all the Workmen including the Respondents were allowed to resume work after 05.04.1988 pursuant to a compromise between the Unions and the Management. When no action was taken against the other Workmen either for going on strike during the above period or for the alleged loss, the learned single Judge was right in holding that the Labour Court committed an error in taking into account the alleged loss to justify the dismissal of the Respondents Workmen. According to the workmen, when the bonus amount was not correctly calculated and lesser amount was paid, on 11.11.1988 they refused to receive the payment and when they went to the Company for work, the Management did not allow them to work. Further case of the Respondent Workmen is that Management insisted to receive the payment and unless they receive the payment, they would not allow them to work and that they were sent out from the Company and on their being sent out from the factory, they filed application before the Labour officer for resumption of work and restoration of duty. The evidence of MW1 relating to the loss caused during that period of strike conducted by all the workers cannot be the subject matter for decision over the dispute as to whether non-employment through discharge simpliciter justify or not. In our considered view, the Labour Court has taken into consideration the extraneous materials to arrive at the conclusion that termination simpliciter was justified on the ground that illegal strike caused loss to the tune of Rs.45,00,000/-. We are of the view that the Labour Court misdirected itself in taking this aspect into consideration to record a finding that the discharge simpliciter was justified.
22. Shortly, after 11.11.1988 the workmen filed Petition before the Labour Officer on 1.12.1988 for resumption of work and restoration of the duty. Referring to the oral evidence of WW1, Labour Court held that the workmen were not inclined to attend the work till the dispute is settled by the Union. The relevant finding of Labour Court reads as under:-
@11/11/88y; btspnawpa eh';fs; (kDjhuh;fs;) ve;j xU fhyf;fl;lj;jpYk; vjph;kDjhuh; epWtdj;jpy; ntiy bra;aa Kd;tunth tpUg;gnkh ,y;iybad;W k/rh/1 xg;g[f;bfhs;fpwhh;@/ After extracting the deposition of WW1, the learned single Judge has elaborately discussed as to how the above finding of Labour Court is erroneous. Extracting deposition of WW1, the learned single Judge also held that the entire reading of both the chief and cross-examination would make it clear that they refused to receive the bonus, since only lesser amount was given as bonus and told the Management that they would get the advice of the Union and then they would receive the amount and when they went inside for attending the work, they were not allowed to do the work by the Management stating that they would be allowed to enter into the factory only when they receive the amount of bonus given by them and the Labour Court picked up one sentence from the deposition and gave a finding as if WW1 admitted that they refused to attend the work which is factually incorrect. The learned single Judge observed that one sentence detached out of the context cannot give a different meaning. In our considered view, the Labour Court misread the evidence of WW1 and when its finding borders on perversity, the learned single Judge was right in interfering with such perverse finding.
23. From the evidence of WW1, it is made clear that it is only the Management did not allow the Respondents Workmen to report for work. If it was the case of abandonment, the Respondents Workmen would not have raised dispute demanding reinstatement and that would show that they were only interested in employment. As rightly contended by the learned counsel for the Respondents Workmen, only the Appellant Management who denied employment to the Respondents from 11.11.1988 and the theory of abandonment was contrary to their own letter dated 07.12.1988.
24. To say that termination is discharge simpliciter, Labour Court also tried to take advantage of the finding given by the Assistant Commissioner of Labour, Coimbatore over the claim for subsistence allowance by holding that there was no suspension and the workmen went on strike during the said period. As pointed out by the learned single Judge from 11.11.1988, the workmen were persistent in resuming work by filing application before the Labour Officer for conciliation for resumption of work. The Labour Officer issued notice to the Management calling upon them to appear for enquiry on 06.12.1988. As pointed out earlier, Management representative also appeared and took adjournment and the matter was adjourned to 09.12.1988. In the meanwhile on 07.12.1988, Management issued a charge memo to the workmen with reference to the alleged misconduct in the factory premises on 07.12.1988. In the charge memo, it was alleged that the workmen trespassed into the premises and prevented entry of the vehicle carrying stocks into the premises and also attempted to prevent other workmen. In the show cause notice, workmen were called upon to submit their explanation within 24 hours. On 07.12.1988, the workmen were suspended.
25. Taking us through the evidence of MW1, the learned Senior Counsel for Appellant Management submitted that the workmen were striking from 11.11.1988 and Labour Court rightly held that the workmen were not interested in resuming work. Placing reliance upon (1998) 9 SCC 220 [UPSRTC and others v. Har Narain Singh and others], it was contended that the finding of Labour Court was based upon the evidence and while so, re-appreciating the evidence is beyond jurisdiction of High Court as it is not sitting in appeal over the findings of Disciplinary Authority/Labour Court. The decision (1998) 9 SCC 220 [UPSRTC and others v. Har Narain Singh and others], relied on by the Appellant was a case where the charges were held to be proved by the Labour Court and it was interfered by the High Court by re-examining and re-appreciating the evidence in the enquiry, the Supreme Court held that it was beyond the power of judicial review by holding that the High Court cannot sit in appeal over the findings either by way of re-appreciation of evidence or by re-examination of evidence. In this case, the learned single Judge neither re-examined nor re-appreciated the evidence, but only discussed and quoted the evidence to hold that the findings of Labour Court was perverse and mere discussion of evidence to see whether there was any perversity would not amount to re-appreciation.
26. Finding of Labour Court that the workmen went on strike from 11.11.1988 is not based on any evidence. As pointed out earlier, immediately after 11.11.1988, the workmen filed application before the Labour Officer for conciliation. In the first hearing before the Labour Officer on 06.12.1988, the Management has not informed the Labour Officer about the alleged strike by the workmen from 11.11.1988. Immediately after 11.11.1988 Management has not issued any notice to the workmen calling upon them to resume work. Only after the Management appeared in the conciliation proceedings before the Labour Officer and took adjournment, show cause notice was issued upon the workmen on 07.12.1988 alleging misconduct and they struck work on 11.11.1988.
27. In so far as, show cause notice dated 07.12.1988, the Management alleged that workmen trespassed into the factory premises on 07.12.1988 and prevented entry of the vehicles into the premises carrying stocks into the premises and also obstructed other workers. Excepting the Managing Partner/MW1, no other evidence was adduced to substantiate the alleged charge of misconduct. Neither other workmen nor driver of the vehicles who were said to have been prevented were examined. No other witness was examined and no document was produced before the Labour Court to substantiate the alleged misconduct on 07.12.1988.
28. The question whether the workmen voluntarily abandoned the work on 11.11.1988 or otherwise is the question of fact which the Labour Court ought to have adverted to. In 1989-II-LLJ 591 [B.R.Singh v. Union of India], the Supreme Court held that strike in a given situation is only a form of demonstration taking different modes like go-slow, sit-in, work to-rule, absenteeism, etc. and therefore, the right to demonstrate and the right to strike is an important weapon in the armoury of the workers and this right has been recognised by almost all democratic countries. On facts, it was held in that case, the termination of services on account of strike call given out of frustration straightaway without taking any penal action for alleged misconduct and without even conducting an enquiry but merely imposing the extreme penalty of termination of service was not justified. While ordering reinstatement, the Supreme Court directed reinstatement only, without back wages.
29. In 1979-I-LLJ 257 [G.T.Lad v. Chemicals and Fibres of India], the Supreme Court was concerned with the case of workers abstaining from work during strike period who suffered the punishment of termination of their services. It was held therein that whether there has been an abandonment of service voluntarily or otherwise is a question of fact which has to be determined in the light of the surrounding circumstances of each case and on the facts of the particular case before the Supreme Court, it was held that the absence of workmen from duty to enforce their demands cannot be construed as abandonment and in the absence of any disciplinary proceedings for alleged misconduct culminating in an order of abandonment, a termination simpliciter cannot be justified.
30. Whether the workmen abstained from work on 11.11.1988 is a question of fact which the Labour Court has not adverted to. The discharge simpliciter was mainly on the ground that on 11.11.1988, the workers did not attend the work and that they misconducted themselves on 07.12.1988. When such was the accusation in the order of discharge, Labour Court should have gone into the said aspect in order to find out whether actually workmen voluntarily abstained from the work on 11.11.1988 and the question of misconduct on 07.12.1988. As pointed out by the learned single Judge that the main reason given by the Labour Court justifying the discharge simpliciter was that there was huge loss caused to the Manager due to the illegal strike conducted by the workers including the Respondents Workmen. As discussed earlier, the said loss was not for the relevant period, but for the period from 25.1.1988 to 05.4.1988 and the learned single Judge rightly held that the said reason was not germane to the issue raised in the proceedings.
31. If dismissal was for the misconduct, it should be preceded by an enquiry. If termination is for the misconduct, it cannot be a termination simpliciter. If the employee is terminated for misconduct, the employee is bound to hold enquiry. If the termination is not for misconduct and when the termination does not fall within any of the four exception under Section 2 (oo) of I.D. Act, it would amount to retrenchment under Section 2 (oo) of I.D. Act and in that event the employer is bound to comply with Section 25-F of I.D. Act and if the employer is failed to comply with the same, the termination would be void ab-initio. Admittedly, the Appellant neither held enquiry before termination nor established the charges before the Labour Court by a legal evidence nor complied with the provisions of Sec.25-F of I.D. Act.
32. The learned Senior Counsel for Appellant Management submitted that order of reinstatement with full back wages would be heavy burden upon the Appellant Management. It was further submitted that Appellant Management was declared sick and had become Non Performing and while so directing the Management to take back the Respondents Workmen along with full back wages would be a heavy burden upon the Management. In support, the Appellant has produced xerox copy of returns filed with the Employees State Insurance Corporation and Employees Provident Fund Scheme for the year 1995. By perusal of the xerox copies produced by the learned Senior Counsel, we find that Appellant Management has paid ESI contribution with respect to the workers for the period from April 1994 to September 1994; October 1994 to March 1995 and April 1995 to September 1995 and EPF for the year 1994-1995 have been paid. However, the point falling for our consideration is whether termination is 'discharge simpliciter' or 'punitive'. In such circumstances, we do not propose to go into the question whether Appellant Management/Mill has been closed or otherwise.
33. In any event, even in a case where the Company was closed for a long time and declared to be sick and later taken over by the new Management for revival, in (2009) 5 SCC 705 [P.V.K.Distillery Limited v. Mahendra Ram], the Supreme Court upheld that the Award of reinstatement with continuity of service and other attendant benefits. Learned counsel for Respondents Workmen contended that the charges are not proved or if the charges proved are trivial leading to the inference of victimization, applying the ratio of (2009) 5 SCC 705 [P.V.K.Distillery Limited v. Mahendra Ram], the Respondents Workmen would be entitled to reinstatement with full back wages.
34. Upon analysis of evidence and materials on record, the learned single Judge held that termination was unjustified and rightly reversed the findings of Labour Court. Upon termination being declared as illegal, payment of full back wages does not automatically follow. While holding that the termination was not justified, the learned single Judge ordered reinstatement with back wages. Placing reliance upon (2009) 5 SCC 705 [P.V.K.Distillery Limited v. Mahendra Ram], the learned Senior Counsel for Appellant Management contended that the order of reinstatement with continuity of service with full back wages would be a huge burden on the Appellant Management where the Appellant factory declared sick and remain closed for many years.
35. In (2009) 5 SCC 705 [P.V.K.Distillery Limited v. Mahendra Ram], the Supreme Court has held that even when the services of the workmen was terminated unjustifiably and illegally it does not create a right of reinstatement with full employment benefits and full back wages.
36. Holding that back wages cannot be claimed as a matter of right, in (2009) 3 SCC 124 [Novartis India Limited v. State of West Bengal and others], the Supreme Court has held as under;-
"21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment.
22. It is also trite that for the purpose of grant of back wages, conduct of the workman concerned also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right."
37. The principle that payment of back wages having a discretionary element involved in it, has to be dealt with in the circumstances of each case and no straitjacket formula can be evolved and holding that grant of full back wages does not automatically follow, in (2010) 2 SCC 70 [Reetu Marbles v. Prabhakant Shukla], the Supreme Court held as under:-
"12. In Hindustan Tin Works (P) Ltd. v. Employees (1979) 2 SCC 80, it has been held as follows:
9. ".... Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule."
13. These observations were subsequently considered in Hindustan Motors Limited v. Tapan Kumar Bhattacharya (2002) 6 SCC 41 and it was observed as follows:-
"11. Under Section 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge or dismissal, as the circumstances of the case may require. The section is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty-bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent."
38. Applying the ratio of the above decisions, we find that the workmen have not adduced any evidence to show that they were not gainfully employed. Admittedly, Tiruppur is a place where number of Export oriented Mills/Factories are situated and much labour is required and the Respondents Workmen being skilled workers, presumably they must have been employed elsewhere over the years.
39. Appellants were out of employment from 1990 and that they had been out of employment for about 20 years. Excepting Thangamani, Moorthy and Revathi, all other workers were getting Rs.192/- per week apart from the incentive paid to them for piece rates. Thangamani and Moorthy were getting Rs.144/- while Revathi was getting Rs.96/- per week. They were also getting for extra work done by them i.e. cutting, ironing and packing on piece rates. In such circumstances, directing the Appellant company to reinstate the Respondents Workmen may not be appropriate.
40. Had they been retrenched in accordance with law, the workmen would have been paid 15 days of average wages for every completed years of service. Having regard to the length of services and their wages, Appellant Management is directed to pay Rs.1,00,000/- in full quit of their claim to each of the Respondents Workmen.
41. W.A.Nos.2116 to 2134/2000:-
In the result, the order of learned single Judge quashing the Award of Labour Court in I.D.Nos.93/91, 92/91, 87/91, 89/91, 88/91, 90/91, 86/91, 94/91, 96/91, 91/91, 95/91, 98/91, 97/91, 100/91, 102/91, 99/91, 320/91, 101/91 and 321/91 dated 13.4.1993 is confirmed and these Appeals are dismissed.
In so far as the order of learned single Judge directing reinstatement with back wages, Appellant Management is directed to pay Rs.1,00,000/- in full quit of their claim to each of the Respondents Workmen within a period of eight weeks from the date of receipt of copy of this Judgment.
W.A.No.2115/2000 is disposed of on the above terms.
In the circumstances of the case, there is no order as to costs in these Appeals. Consequently, connected MPs are closed.
[R.B.I.,J] [M.V.,J]
09.03.2010
bbr
Index: Yes/No
Internet: Yes/No
To
The Presiding Officer,
Labour Court, Coimbatore.
R.BANUMATHI, J.
and
M.VENUGOPAL,J.
bbr
Common Judgment
in W.A.Nos.2115 to 2134/2000
09.03.2010