Madras High Court
The Workman Represented By The General ... vs The Chairman, Madras Port Trust, Rajaji ... on 1 February, 2002
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
ORDER R. Jayasimha Babu, J.
1. The union sponsored the dispute regarding the validity of the order of termination of two workmen who were its members. The Labour Court has upheld the termination But, while so doing has directed that they be paid salary till the date of the order of the Labour Court by relying the decision of the Supreme Court in the case of Desh Raj Gupta and Industrial Tribunal IV, Lucknow and another (1991 (1) LLJ 120). The workmen as also the employer haved questioned the award to the extent it is prejudicial to them.
2. The charge against the workmen was that they had assaulted a co-worker in the premises of the employer. The facts that the employee said to have been assaulted and the workmen so accused had a physical contact on that day on the staircase leading to one of the offices in the premises of the employer as also the fact that there was a gate meeting that evening of a union to which the delinquent workmen belong, are undisputed. It was the case put forward by the Management that the assault was by reason of the fact that the person assaulted belonged to a different union and had declined to attend that gate meeting.
3. The Labour Court recorded evidence of the parties itself after having declined to act on the enquiry report. After discussing the evidence placed before it, it came to the conclusion that the incident had indeed occurred, that there was an assault and that the workmen were guilty.
4. It is submitted by the learned counsel for the petitioner union that the evidence of the Doctor had been ignored by the Labour Court. The Doctor's evidence was that a person coming down the stair case could not have been hit on the right cheek by a right handed person who was proceeding up the staircase. That evidence itself is not something which can be accepted in to. The relative position of the person coming down the staircase, to the person proceeding up the stair case will be an important factor in determining as to whether a right handed person will be able to hit the right cheek of the person coming down the stair case. Moreover when the palm is reversed the right hand of an assailant can easily, when hit, impact the right cheek of the person opposite to him. The fact that the person assaulted had sustained injury is not in dispute. According to the delinquent that person fell down the staircase and sustained injury on the right cheek. The fact of assault has been spoken to by the person assaulted. There is no reason to disbelieve his evidence. It is erroneous to think that a person can be hit only by the palm. All that is required is that the person should be able to reach to the other cheek. Apparently one of the delinquent had hit the victim on his right cheek. I do not therefore find any infirmity in the finding of the Labour Court that the assault had occurred and the delinquent workmen were indeed responsible for it.
5. Insofar as the award of salary to the workmen till the date of the order of the Labour Court is concerned, the decision of the Apex Court on which the Labour Court has placed reliance viz. the case of Desh Raj Gupta vs. The Industrial Tribunal, Uttar Pradesh ( 1991 (1) L.L.J. 120), was held by a later Bench of the Apex Court, in the case of Thiruvirkolam vs. The Presiding Officer ( 1997 (1) L.L.J. 400), as being not binding, as that judgment was contrary to the law laid down by the Constitution Bench in the case of P.H. Kalyani vs. M/s. Air France, Calcutta, . The Constitution Bench in the case of Kalyani, interalia, had observed as under, "The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bonafide conclusion that the employee was guilty of misconduct. Thereafter, on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair Labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. ....... However, on coming to the conclusion on its own appraisal of evidence adduced before it, that the dismissal was justified, its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made."
6. It is no doubt true that after that decision of the Constitution Bench which was rendered in the year 1963, a three Judge Bench of the Apex Court in the case of Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980(1) LLJ 137) had held that, " Jurisprudentially approval is not creative but confirmatory and therefore, relates back. A void dismissal is just void and does not exist. If the tribunal, for the first time, passes an order recording a finding of misconduct and thus breathes life into the dead shell of the management's order, pre-dating of the nativity does not arise".
7. The Apex Court in the case of Desh Raj Gupta had followed the decision rendered in the case of Gujarat Steel. All these judgments were considered by a two Judge Bench of the Apex Court in the year 1996 in the case of Thiruvirkolam, cited supra. The Court after such consideration, held that the observations made by the three Judge Bench in the case of Gujarat Steels are not in line with the decision rendered in P.H. Kalyani, which was binding, or that of the case of D.C. Roy to which the learned Judge who spoke for the Bench in the case of Gujarat Steel Krishna Iyer, J. was a party.
8. The Bench in the case of Thiruvirkolam also relied on the discussion on the topic under the heading "void and voidable" at pages 339 to 344 in Administrative Law by Wade, Seventh Edition wherein at pages 341 and 342, it was stated that, " 'Void' is therefore meaningless in any absolute sense. Its meaning is relative depending upon the Court's willingness to grant relief in any particular situation."
The other observation in Wade which is of relevance and which was also quoted with approval reads thus, "An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders".
9. The decision rendered in the case of Desh Raj Gupta which had followed the observations made in the case of Gujarat Steel was held by the Court, not to be an authority on the question of relation back. The Court also held that the observations made in the case of Gujarat Steel were "per incurium and not binding".
10. The law as of to-day, therefore is that declared by the Constitution Bench in the case of P.H. Kalyani. The manner in which that decision is to be understood has been stated in the case of Thiruvirkolam decided in the year 1996. No decision of Constitution Bench or a larger bench taking a view contrary to that taken in the case of P.H. Kalyani was brought to my notice. The Tribunal, therefore, was clearly in error in holding that the order of dismissal upheld by it was not operative on the date the order was passed by the employer, and in directing that the employees be paid wages for the period from the date they were dismissed till the date of the award of the Labour Court. That part of the award of the Labour Court is therefore set aside. The writ petition filed by the Union is dismissed and that filed by the employer Port Trust is allowed.
11. Counsel for the workmen submitted that the employer has not been taking a uniformly strict view in matters concerning the misconduct of varying degrees of gravity committed by workmen while imposing punishments. He submitted that even for grave offences, the employer had in the past given lesser punishments. Counsel also submitted that the workmen had put in nineteen years of service and that after the award of the Labour Court one of them died.
12. The long years of service put in by the employees is indeed a factor to which the employer ought to have given some consideration. The petitioner union as also the workmen may submit a representation to the employer for grant of some monetary compensation on compassionate grounds, which, I have no doubt will be, considered with care and sympathy by the employer. Connected Miscellaneous petitions are also closed.