Bombay High Court
E. Merck (India) Limited vs V.N. Parulekar And Ors. on 23 November, 1990
Equivalent citations: [1991(63)FLR401], (1994)IIILLJ546BOM, 1991(1)MHLJ540
JUDGMENT D.R. Dhanuka, J.
1. These petitions involve important questions concerning interpretation and application of Section 11A of the Industrial Disputes Act, 1947
2. E. Merck (India) Limited, the petitioner in Writ Petition No. 2973 of 1987 is a well-known pharmaceutical company having its factory at Taloja and its offices at Bombay. Respondent Nos. 1, 2 and 3 were the office-bearers of the recognised trade union concerning the employees of the petitioner at the relevant time. The respondent Nos. 1, 2 and 3 were employees of the petitioner at all material time.
3. These petitions arise out of unfortunate litigation between the employer and the employees concerning incidents which took place about 13 years ago. This unfortunate litigation has a chequered history. Law's delays has also contributed to the human sufferings. It is reasonably hoped that the parties will at least now put an end to this acrimonious litigation at the earliest so that the industrial peace can be restored.
4. By these petitions, both the employer as well as the employees have impugned part of the Award dated 9th July, 1987 made by the Industrial Tribunal in Reference (IT) No. 230 of 1979. On 8th December, 1978 the management passed orders of dismissal against each of the three workmen i.e. respondent Nos. 1, 2 and 3 in Writ Petition No. 2973 of 1987 accepting the findings recorded by the Enquiry Officer appointed by the management to enquire into various charges of misconduct imputed to each of the three respondents. By an order of reference dated 15th October, 1979 passed by the appropriate authority, four demands were referred to the Industrial Tribunal for adjudication under the provisions of Industrial Disputes Act, 1947. The said demands were:-
1) Bonus for the year 1975;
2) Bonus for the year 1977;
3) Dismissal of respondent Nos. 1, 2 and 3 herein i.e. Shri V.N. Parulekar, Shri V.V. Pradhan and Shri J.C. Felicio; and
4) Discharge of one Mr. Bhoir.
On 13th November 1979, the union and the management entered into a settlement, a copy whereof is annexed as Exhibit "W" to Writ Petition No. 2973 of 1987. The said settlement was arrived at between the parties under Section 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947. Prior to arriving at the said settlement the workmen had resorted to strike on and from 14th May, 1979. By the terms of the said settlement, the union agreed to call off the strike and the company agreed to make various payments to the workmen and settle other claims. As far as the orders of dismissal passed against the three workmen i.e., respondent Nos. 1, 2 and 3 in Writ Petition No. 2973 of 1987 are concerned, it was provided by Clause 6 of the said settlement that the adjudication proceedings will continue but in the meanwhile the management shall make payment of an amount equivalent to 80 per cent of the last drawn monthly wages of the workmen till the ultimate decision in the dispute. It was specified in Clause 6 of the said settlement that respondent No. 1 will be paid Rs. 700/- per month, respondent No. 2 will be paid Rs. 900/- per month and respondent No. 3 will be paid Rs. 700/- per month. Various other provisions were made in the said settlement which need not be set out in this judgment. In view of the said settlement, a pursis was filed before the Industrial Tribunal by the parties recording the factum of the said settlement and requesting the Tribunal to make an award in terms of the said settlement in respect of the matters covered under the said settlement. On 10th January 1980, the Industrial Tribunal made its Award Part I in terms of the said settlement. As regards the claim of respondent Nos. 1, 2 and 3 workmen seeking reinstatement and full back wages and continuity of service is concerned, the reference was proceeded with on merits. The Industrial Tribunal framed three issues during the course of the said adjudication proceedings. The said three issues are as under :-
(1) Whether the enquiries against Sarvashri Pradhan, Parulekar and Felicio were vitiated by the alleged irregularities said to have been Committed by the Enquiry Officers during the concerned enquiries as stated in the Statement of Claim.
(2) Are the findings noted by the Enquiry Officers perverse ?
(3) Whether the three workmen can seek the relief of reinstatement and back wages?
By its order dated 31st July, 1986, the Industrial Tribunal recorded its finding on Issue No. 1 and, held that there was no legal infirmity in the enquiries conducted by the management against respondent Nos. 1, 2 and 3 and the Enquiry Officers had faithfully recorded the notes of the enquiries conducted by them and had not committed breach of any of the principles of natural justice. The said order elated 31st July, 1986 is not under challenge.
5. By the impugned award dated 9th July, 1987, the Industrial Tribunal held that the findings recorded against respondent Nos. 1, 2 and 3 were not perverse. The Tribunal recorded that the management had not indulged in any act of victimisation or any act amounting to unfair labour practices. The Tribunal held that the punishment of dismissal awarded to respondent Nos. 1, 2 and 3 was too harsh and was liable to be set aside in view of certain factors set out by it in paragraph 12 of its judgment. The Tribunal directed the management to reinstate respondent Nos. 1, 2 and 3 in service with continuity of service but without any back wages.
6. The employer is aggrieved by the said award dated 9th July, 1987 in so far as the Tribunal directed reinstatement of respondent Nos. 1, 2 and 3. The management is pressing its contention that the Tribunal ought not to have interfered with the order of dismissal dated 8th December, 1978 as, according to the employer, the employees concerned were guilty of grave and serious misconduct. The employees concerned i.e. respondent Nos. 1, 2 and 3 are also aggrieved by the said award in view of the Tribunal's decision denying back wages to respondent Nos. 1, 2 and 3. The respondent Nos. 1, 2 and 3 are also aggrieved by the order of the Tribunal on Issue No. 2 framed by the Tribunal. The respondent Nos. 1, 2 and 3 have contended in the cross petition filed by them i.e. Writ Petition No. 972 of 1988 that in fact the findings recorded by the Enquiry Officers were perverse and that respondent Nos. 1, 2 and 3 had not committed any misconduct as imputed to them.
7. On 23rd September 1987, Writ Petition No. 2973 of 1987 was admitted by Variava, J. On the same day, the learned Judge granted interim stay in terms of prayer (b) of the petition. Thus, the respondent Nos. 1, 2 and 3 have not been reinstated by reason of the interim order passed by this Court. The learned counsel for the management made a statement to the Court that during the pendency of the petition, the petitioner-employer will comply with Section 17-B of the Industrial Disputes Act, 1947. On 27th April 1989, A.C. Agarwal, J. passed a consent order in terms of the consent terms arrived at between the employer and Mr. V.N. Parulekar. Mr. V.N. Parulekar accepted a sum of Rs. 1,60,000/- in full and final settlement of his claim of reinstatement and back wages. Thus, these two writ petitions are required to be decided only in relation to Mr. V.V. Pradhan and Felicio. In other words, the basic question which will have to be ultimately considered would be as to whether the orders of dismissal dated 8th December, 1978 passed against Mr. V.V. Pradhan and Mr. J.C. Felicio are justified or not. The Industrial Tribunal in the impugned award held that the findings of misconduct recorded by the Enquiry Officer were not perverse. The Industrial Tribunal held that ordinarily the punishment of dismissal would have been found appropriate having regard to the gravity of misconduct proved. The Industrial Tribunal however altered the order of punishment passed by the employer-company and substituted the same by directing reinstatement without back wages in purported exercise of its powers under Section 11-A of the Industrial Disputes Act, 1947.
8. It is necessary to refer to the basic allegations which were subject-matter of charge-sheet, enquiry and findings recorded against respondent Nos. 2 and 3 workmen before I deal with crucial legal aspects having bearing on these petitions and the submissions made by the learned counsel for the employer as well as by the learned counsel for the employees. Some of the relevant facts pertaining to respondent No. 2 are as under:-
(a) Mr. V.V. Pradhan was employed by the company sometime in or about the year 1973 and was working as a boiler attendant at the material time. On 28th November, 1977, the petitioner company served a show-cause notice on respondent No. 2 alleging that on 2nd November, 1977 the respondent No. 2 had left the boiler unattended without handing over the charge of his duty to another authorised employee of his department at the end of the third shift at 7 a.m. In the said show-cause notice it was alleged that the respondent No. 2 was aware of the long standing practice of the department that the boiler should not be left unattended even if the duty hours were over at the end of the shift in which the Boiler attendant was working. It was alleged in the said show-cause notice that another authorised employee of the company could be brought to attend to the said boiler only at about 9 a.m. It is the contention of the petitioner-company that no reply was sent to the said show-cause notice by respondent No. 2. On 6th December, 1977, the respondent No. 2 was served with the necessary charge-sheet in that behalf. On 17th October, 1978, the Enquiry Officer recorded his findings holding that the charge levelled against respondent No. 2 as set out in the above referred charge-sheet was proved and the respondent No. 2 was guilty of misconduct with which he was charged.
(b) On 2nd December 1979, the petitioner company issued another charge-sheet and served the same on respondent No. 2. It was alleged in this charge-sheet that the respondent No. 2, the said Mr. Parulekar and some others had gheraoed three senior officers of the petitioner-company on 8th November, 1977. It was alleged in the said charge-sheet that the respondent No. 2 the said Parulekar and others had wrongfully confined the company's officers Dr. K. Kalpathy, Mr. C.R. Gandhi and Mr. A.V. Chandorkar in the office of another officer of the company Mr. Desai. The said incident was particularised in the said charge-sheet. It was alleged in the said chargesheet that a meeting had been arranged between the representatives of the management and the workmen at 11.15 a.m. in the Conference Room, Pharma Building, Taloja Factory. It was stated that the workmen and the union committee members were pressing for festival advance of Rs. 500/- whereas the management was willing to give advance of Rs. 200/-. It was alleged by the management that the respondent No. 2, the said Parulekar and several others had led a group of 40-50 workers to the Utility Building and ultimately leaders of the Union including the respondent No. 2 expressed that they wanted to meet the Managing Director of the petitioner company in that behalf immediately. It was alleged that the appointment was fixed for such meeting between the Managing Director and the representatives of the union at the head office at about 5.30 p.m. on the same day. It was stated that in the said charge-sheet that Dr. K. Kalpathy and Mr. Chandorkar had made it clear to respondent No. 2 and others that the transport would be provided by the management so that the meeting fixed at 5.30 p.m. could be held between the Managing Director of the petitioner-company and the representatives of the union. It was alleged in the said charge-sheet that the respondent No. 2, the said Parulekar and several others indulged in the objectionable activity of wrongful confinement of the company's officers and these officers were not allowed to move for several hours and intimidatory and derogatory slogans were shouted against the management. It was alleged that these officers were harassed, humiliated, wrongfully confined, abused and intimidated on exhortation of respondent No. 2. It is not necessary to give more particulars about the allegations made in the said charge-sheet at this stage in this judgment. It was alleged that the respondent No. 2 had committed misconduct under Clause xi (a,b), xii, xiii, xxxx, xxxxiii of Clause 24 of the Certified Standing Orders. On 15th November, 1978, the Enquiry Officer recorded his findings on the charges set out in the said charge sheet dated 2nd December, 1977. The Enquiry Officer held after considering the evidence of the witnesses that the charges levelled against the respondent No. 2 as well as Mr. Parulekar were duly proved. There is not much dispute between the parties about the factum of gherao as such. The dispute between the parties is about the details, duration of gherao. It is also emphasised by Dr. Kulkarni that this incident must be viewed in context of strike of workmen and the measures adopted by the union for collective bargaining and the tense atmosphere which was then prevailing because of the management not conceding to the reasonable demands of the workmen.
9. The petitioner-company accepted the findings of the Enquiry Officer and passed an order of dismissal against respondent No. 2 on 8th December 1978. The said order of dismissal was communicated by the petitioner to respondent No. 2 by its letter dated 13th December, 1978.
10. I shall now set out the material facts pertaining to respondent No. 3 Mr. J.C. Felicio regarding the alleged misconduct imputed to him. The respondent No. 3 was employed as a driver of the petitioner-company sometime in or about the year 1973. On 13th December 1976 the petitioner-company served a show-cause notice on respondent No. 3 setting out four allegations and calling upon respondent No. 3 to give his explanation in that behalf. It was alleged in the said show-cause notice that the respondent No. 3 had committed acts which amounted to wilful insubordination or disobedience, habitual breach of instructions for the maintenance and running of the department, acts subversive of discipline or good behaviour, use of abusive language, etc. It was alleged in the said show cause notice in particular as under:-
(1) On 8th December 1976, the respondent No. 3 permitted one Miss Shetty, exemployee of the company who had come to the factory premises to collect her past dues to board the bus of the petitioner-company. It was alleged that Mr. Mulay, the Security Officer on duty had given instructions to respondent No. 3 not to allow the said Miss Shetty to travel by the abovereferred minibus of the company i.e. Mini Bus MRA 2426. The said bus was carrying cricket players to Panvel. Secondly, it was alleged that on 4th December, 1976, the respondent No. 3 had driven the company's bus MHY 8132 from Dadar to Andheri without any authorisation from the Department. Thirdly, it was alleged that on 5th December, 1976, the respondent No. 3 had switched Bus MRA 2442 to ply between Dadar and Taloja whereas the said bus was scheduled to ply between some other route. Fourthly, it was alleged that on 26th September, 1976, the respondent No. 3 had rashly entered in the Mare Garage at Sion-Trombay Road, Chembur with the company's Jeep MRD 6843 and had insulted the partner of the Garage and also threatened the workers at the Garage not to enter the factory premises at Taloja.
respondent No. 3 gave certain explanation in reply to the said show-cause notice by his letter dated 18th December, 1976. Since the said explanation was not found satisfactory by the Management, the petitioner-company issued a charge-sheet and then served the same on respondent No. 3 on 10th January 1977 levelling the same very charges which were mentioned in the said show-cause notice.
7th September 1978 after holding a detailed enquiry, the Enquiry Officer recorded his finding holding the respondent No. 3 guilty of the charges levelled against him.
11. On 18th February, 1977, the petitioner company served one more charge-sheet on respondent No. 3. It was alleged in the said charge-sheet that on 3rd February 1977 respondent No. 3 had driven bus MRY 8132 carrying outgoing general shift employees to Dadar, negligently and rashly and dashed against the barrier at the Factory Gate. It was alleged that the above referred act of respondent No. 3 amounted to gross negligence in performance of work which was a misconduct under Company's Certified Standing Order No. 24. A detailed enquiry was held in respect of the said allegation also. Ultimately, on I7th August 1978 the Enquiry Officer recorded his findings and held that respondent No. 3 was guilty of the charge levelled against him.
12. On 11th April, 1977, the petitioner company served one more charge-sheet on respondent No. 3 alleging that on 8th March 1977, the respondent No. 3 drove bus No. MHY 8132 carrying general shift employees from factory at Taloja to Andheri without checking diesel in the fuel tank as a result whereof the bus came to a halt in between the employees could reach their destination at Andheri at about 20.10 hours whereas normally the bus would have reached Andheri at 18.25 hrs. A detailed enquiry was held by the Enquiry Officer in respect of the allegations made in the said third charge-sheet also. On 12th June 1978, the Enquiry Officer recorded his findings holding that the said charge-sheet was duly proved. In the result, the petitioner-company passed its order of dismissal against respondent No. 3 on 8th December, 1978 and communicated the said order of dismissal to respondent No. 3 by its letter dated 13th December, 1978. Since the workmen and the union were aggrieved by the said orders of dismissal, disputes were raised seeking adjudication of these disputes along with the disputes of the other workmen and the order of reference was passed on 15th October, 1979 referring various demands including the demand for reinstatement of respondents Nos. 2 and 3 with back wages and continuity of service.
13. I shall now proceed to summarise the contents of the impugned award, there being no dispute in respect of finding on issue No. 1. Prayers made in Writ Petition No. 976 of 1988 restrict the challenge to Award dated 9th July 1987 only. As regards Mr. Pradhan is concerned, the Industrial Tribunal held that the findings recorded by the Enquiry Officer on both the charges levelled against Mr. Pradhan i.e. charge leaving- the boiler unattended as well as participating in and organising gherao against the senior officers of the company were not perverse and the same were based on evidence recorded in the inquiry. It must be mentioned at this stage that respondent No. 2, the said Mr. Parulekar along with 8 other workmen were prosecuted by the State at the instance of the management before Judicial Magistrate, First Class, Panvel and by an order dated 24th March, 1983, all the accused including respondent no, 2 and the said Mr. Parulekar were acquitted. The reasoning and the conclusion of the learned Magistrate is helpful to the workmen to some extent although the evidence led in the Departmental Enquiry must be assessed on its own merits. It is doubtful as to whether the judgment of the Criminal Court cannot be looked into for consideration of the question as to whether the workman was guilty of misconduct imputed to him in the departmental disciplinary enquiry. At this stage, it must be also mentioned that 8 other workmen including Mr. Shetty, Joint Secretary of the Union, Committee members and activists were also charge-sheeted by the company on the charge of indulging in gherao and all these workmen were also found guilty of the charges levelled against them in the domestic enquiry. Each of these workmen were merely suspended for four days. These workmen did not challenge the legality or propriety of the company's action suspending them for a period of four days on the ground of having indulged in gherao.
14. The Industrial Tribunal expressly recorded a finding to the effect that the management had not indulged in any act which could be described as victimisation or unfair labour practice, and the conduct of the management showed that the company had no intention to discourage the legitimate trade union activities. The Industrial Tribunal did not reappraise the evidence before the Enquiry Officer and the additional material produced before the Tribunal by itself but proceeded to address itself to the narrower and limited question as to whether the findings recorded by the Enquiry Officer were perverse or not as used to be done prior to incorporation of Section 11-A in the Industrial Disputes Act, 1947. Since the Tribunal found that there was evidence before the Enquiry Officer on the basis of which the Enquiry Officer could legitimately record the findings recorded by him, the Tribunal answered Issue No. 2 in favour of the petitioner-company by holding that the findings recorded against the said Mr. Pradhan were not perverse. As regards respondent No. 3 is concerned, the Tribunal specifically recorded its conclusion in paragraph 8 of the Award that the orders of Mr. Mulay to respondent No. 3 not to allow Miss Shetty to board the bus were not reasonable. It was observed in the award that the ex-employee of the company, an unmarried girl, had come to the factory to collect her legal dues. The respondent No. 3 had not committed any illegality or impropriety by allowing her to board the bus. In the opinion of the Tribunal the conduct of respondent No. 3 in permitting Miss Shetty to board the bus could not amount to insubordination, habitual breach or misconduct. Thus, the Tribunal did not accept the finding of the Enquiry Officer on the first charge levelled against the respondent No. 3, in the said charge-sheet dated 10th January, 1977. Charge No. 2 and Charge No. 3 contained in charge-sheet dated 10th January, 1977 are concerned, the Tribunal held that the Enquiry Officer's findings holding that the charges were proved, were based on evidence. I do not find any discussion in the Award on the fourth charge in the said charge-sheet. Similarly, the Tribunal held that the Enquiry Officer's findings that the charges levelled in the second charge-sheet for negligent driving against respondent No. 3 which led to damaging the barrier was based on evidence and could not be described as perverse. Similarly, in respect of the charges mentioned in the third charge-sheet dated 11th April, 1977 is concerned, the Tribunal held that the findings of the Enquiry Officer holding the respondent No. 3 driver as guilty of the charge of negligence in not checking the diesel before starting the bus carrying large number of employees was based on clinching evidence.
15. The Tribunal thereafter proceeded to consider as to whether the relief of reinstatement with full back wages should be granted or not, Paragraph 12 of the Award is of considerable significance. In Paragraph 12 of the Award, the Tribunal observed that having regard to the gravity of the misconduct proved against respondent Nos. 2 and 3, the Tribunal would have ordinarily upheld the punishment of dismissal of all the three workmen concerned. The Tribunal however observed that in order to maintain normal employee-employer relationship, it was not desirable to maintain the extreme punishment of dismissal. It was also observed in Paragraph 12 of the said Award that the respondent Nos. 2 and 3 and the said Mr. Parulekar had already suffered heavily and lapses on their part should be considered as lapses of immatured union leaders. The Industrial Tribunal held that it was desirable to restore normalcy in the relations between the company and the workmen. It was observed that the extreme punishment of dismissal would result in economic death of respondent Nos. 2 and 3. It was observed in Paragraph 12 of the award that it would be impossible for respondent Nos. 2 and 3 to secure any employment and it was, therefore, necessary to interfere with the punishment inflicted by the company. It was therefore held that the punishment awarded was harsh and disproportionate.
16. Having regard to the facts enumerated in Paragraph 12 of the said award, the Tribunal altered the order of punishment and directed reinstatement of respondent Nos. 1, 2 and 3 with continuity of service but without any back wages. It was observed in Paragraph 13 of the said Award that denial of back wages to respondent Nos. 1, 2 and 3 for all these years would constitute adequate punishment for their acts of misconduct. The management is aggrieved by direction of reinstatement. The workmen are aggrieved by direction of denial of back wages.
17. Shri K.K. Singhvi, the learned counsel for the petitioner-company has submitted as under:-
(i) The Industrial Tribunal has no jurisdiction to interfere with the order of dismissal having regard to its conclusions on fairness of the domestic enquiries, non-perversity of the findings recorded by the Enquiry Officer and seriousness of misconduct proved.
(ii) Punishment awarded to the workmen by the management was neither disproportionate to the misconduct nor harsh. :
(iii) The Industrial Tribunal failed to take into consideration relevant factors while directing reinstatement and exercising its purported jurisdiction under Section 11-A of the Industrial Disputes Act, 1947. If the Industrial Tribunal had applied its mind to the relevant principles applicable to such cases, the Industrial Tribunal would have never directed reinstatement even without back wages.
(iv) Paragraph 12 of the impugned Award discloses that the Tribunal has interfered with the order of dismissal and directed reinstatement on totally irrelevant grounds. The order of dismissal cannot be set aside by the Tribunal merely on the ground that directing of such reinstatement would assist in normalising of employer-employees relationship. The Tribunal erred in observing that the workmen concerned were immatured office bearers of the trade union and the lenient view of the punishment ought to be taken therefor even though in normal circumstances punishment of dismissal would be justifiable having regard to the gravity of misconduct proved against the workmen.
18. Dr. R.S. Kulkarni, appearing for the workmen concerned submitted as under:
(a)The Industrial Tribunal had not addressed itself to the question of as to whether the allegations of misconduct were proved to the satisfaction of the Tribunal by acceptable evidence. The Industrial Tribunal had consciously or unconsciously applied pre 1971 law while framing the limited issue as to whether the findings recorded by the Enquiry Officer were perverse or not when the issue ought to have been as to whether the Tribunal was satisfied that the workmen had committed misconduct attributed to them by acceptable evidence.
(b) The Industrial Tribunal ought to have held that the findings of misconduct were perverse and the employers had victimised the concerned workmen.
(c) The Industrial Tribunal had not discussed several facts of the evidence in the impugned award which were helpful for the case of the defence.
(d) The incident of gherao in this case was not accompanied by violence as was the case in the case reported in Workmen of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz Werner (P) Ltd. and Anr. : 1990 (2) LLJ 226 and was liable to be viewed in a different perspective in view of the prevailing tense situation for which the management was also responsible. Dr. Kulkarni emphasised that the workers had resorted to strike which was ultimately followed by a settlement in respect of several of the demands.
(e)The Industrial Tribunal failed to attach due weightage to the judgment of the Criminal Court which had virtually exonerated Mr. Pradhan. The Industrial Tribunal had erroneously misconstrued the said judgment to mean that Mr. Pradhan was given benefit of doubt.
(f) Back wages could not be withheld as a matter of punishment at all. The Industrial Tribunal ought not to have deprived the workmen of back wages and the correct order which ought to have been passed by the Tribunal was to direct reinstatement with full back wages.
19. In view of my conclusion on some of the crucial points arising in this case set out hereinafter, I do not propose to deal with each of the submissions made by the learned counsel for the employer or for the workmen.
20. Prior to 15th December 1971, holding of disciplinary enquiry and award of punishment were considered as a management function and the Labour Tribunals had very limited jurisdiction to interfere with the findings recorded on the inquiry and the order of punishment. Under the said law, the Labour Tribunals could interfere with the order of dismissal passed by the management after holding of domestic inquiry only if the decision of the management lacked bona fides or it was a case of victimisation or unfair labour practice or violation of natural justice or the findings recorded by the Enquiry Officer were perverse etc.
21. On 15th December 1971, Section 11-A was incorporated in the Industrial Disputes (Amendment) Act, 1971. Sometime in June 1963, the International Labour Organisation had made recommendation No. 119 to the effect that worker aggrieved by the termination of his employment should be entitled to appeal against the termination to a neutral body such as an arbitrator or Court or a Tribunal. The International Labour Organisation further recommended that such neutral body should be empowered to examine the reasons given for the termination of employment and the other circumstances relating to the case and render a decision in the justification of the termination. The International Labour Organisation made several other recommendations set out in the Statement of Objects and Reasons pertaining to the abovereferred Amending Act. Our Parliament, therefore, enacted Section 11A of the Industrial Disputes Act, 1947 completely altering the law enlarging powers of Labour Tribunal in this behalf in order to give effect to the abovereferred recommendations of the International Labour Organisation. In the Indian Iron and Steel Co. Ltd. ". Their Workmen reported in 1958-I LLJ 260 and several other old cases, the Supreme Court had held that the Tribunal had power to interfere with the management's decision to dismiss, discharge or terminate the services of the workman only on limited grounds as set out therein and only if decision of the management was perverse or its action amounted to act of victimisation or suffered from want of good faith etc. Under the old law, the Tribunal had no power to appreciate the evidence and arrive at its own satisfaction in appraisal thereof as to whether the charge of misconduct was proved or not to the satisfaction of the Tribunal. As a matter of fact in Buckingham and Carnatic Co. Ltd. by its Managing Agents; Binny and Co., Madras v. Workers of the Company represented by the Madras Labour Union and Madras Textile Workers' Union, 1952 LIC 490, the Labour Appellate Tribunal held that the decision of the management could be interfered with only if :-
(a) there was want of bona fides, or
(b) there was a case of victimisation or unfair labour practice or the violation of principles of natural justice, or
(c) there was a basic error of facts, or
(d) there had been a perverse finding on the materials.
The ratio of the said decision was approved in the judgments of the Supreme Court including in the case of The Indian Iron and Steel Co. Ltd. v. Their Workmen reported in 1958-I LLJ 260. Section 11A of the Act was authoritatively interpreted by the Supreme court in the case of Workmen of Firestone Type and Rubber Co. of India P. Ltd. v. The Management and Ors.: 1973-I LLJ 278. It was held in Paragraph 32 of the said judgment that the Tribunal was how clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself as to whether the said evidence relied on by the employer established the misconduct alleged against the workman. The Tribunal's powers under Section 11A of the said Act are thus very wide and are not limited to the grounds on which it could interfere with the order of dismissal or discharge passed by the management under the pre-existing law. In my judgment, the Tribunal was under a duty to reappraise the evidence and satisfy itself as to whether the misconduct alleged against the workman was proved or not. It is unfortunate that even after 17 years, the issue which is being framed by the Tribunal at least in some of the references is as to whether the finding on the charge of misconduct recorded by the Enquiry Officer was perverse or not. Framing of such an issue by the Tribunal is totally erroneous and amounts to ignoring the beneficial and benevolent provision like Section 11A of the Industrial Disputes Act, 1947. The issue to be framed should be to the following effect:
Whether the charge of misconduct levelled against the workman is proved to the satisfaction of the Tribunal by acceptable evidence ?
If the Tribunal is required to record its own satisfaction on the question of misconduct on reappraisal of evidence, led before the Enquiry Officer and/or before the Tribunal, the Tribunal cannot abdicate its jurisdiction by addressing itself to the question as to whether the findings recorded by the Inquiry Officer were perverse (meaning thereby whether there was some evidence on the basis of which the impugned finding could have been recorded by the Inquiry Officer, although the Tribunal would nave considered the evidence led to be inadequate to sustain the charge). In Paragraph 32 of the abovereferred judgment in 'Firestone case' it was held by Vaidialingam, J. speaking, for the Apex Court as under:
"What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct".
It was further observed in the same paragraph of the judgment that the limitation imposed on the powers of the Tribunal in Indian Iron and Steel Co. Ltd. case can no longer be invoked by an employer. In the last sentence of paragraph 32 of the said judgment, the Hon'ble Supreme Court further observed as under:-
"The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter".
In Paragraph 36 of the judgment, the Supreme Court further observed that the Tribunal could differ from the finding of the employer in an appropriate case and hold that no misconduct was proved. In paragraph 37 of the said judgment it was held that Section 11-A conferred full power on the Tribunal to go into evidence and satisfy itself on the point of misconduct as well as on the question as to whether the misconduct proved warranted the order of dismissal or discharge. In paragraph 48 of the said judgment, the Supreme Court held that the Tribunal must give cogent reasons if it altered the punishment awarded by the employer. It is, therefore, obvious that the impugned award dated 9th July, 1987 suffers from legal infirmity inasmuch as Issue No. 2 framed by the Tribunal was to the effect as to whether the findings recorded by the Inquiry Officer concerned were perverse or not. These petitions, therefore, raise a serious question as to whether I should remand the reference to the Tribunal on this limited ground alone or whether I should consider the relevant material on record of this case and pass appropriate orders and issue suitable directions on merits as are just and reasonable and endeavour to avoid the order of remand having regard to the acrimonious and chequered history of the litigation.
22. Mr. Singhvi, the learned counsel for the petitioner-company has submitted that in substance the Tribunal has applied its mind to the findings recorded and has reappraised the evidence and it would not be correct to decide this writ petition merely by concentrating on the wording of the issue framed. I shall deal with this contention little later. At this stage itself, a reference must be made to the judgment of the Supreme Court in the case of Gujarat Steel Tubes Limited v. Mazdoor Sabha . It was held by the Supreme court in this case that under Article 226 of the Constitution the powers of the High Court were broad enough and the High Court could substitute its own orders in place of the order passed by the Tribunal if it so thought fit It was held by Krishna Iyer, J. speaking on behalf of the majority in this judgment that what the Tribunal may in its discretion could do, the High Court too, under Article 226 can, if facts compel, do. Koshal, J. took a dissenting view of the matter. It was held by the majority in this case that the High Court could interfere with the award of an Industrial adjudicator if that was based pn a complete misconception of law. The question which I have to ask myself is as to whether it would be in the interest of justice to remand the matter to the Industrial Tribunal when the disputes between the parties are pending since 1977-1978 and there is enough material on record on the basis of which it is possible for the High Court to exercise its discretion and mould the relief so as to promote substantial justice and put an end to this long drawn controversy. In the abovereferred judgment of the Supreme Court, the Supreme Court moulded the relief and passed the final orders granting reinstatement to some of the employees and granted some other reliefs to some other employees.
23. As far as the incident of gherao is concerned, facts of the case, pleadings of the parties, summary of the evidence led before the Enquiry Officer leave no doubt in my mind that the respondent No. 2 had led the gherao which resulted in wrongful confinement of three of the Officers of the company. It is true that the respondent No. 2 Mr. Pradhan and 8 others were acquitted by the Criminal Court and the Industrial Tribunal has not correctly summarised all the grounds on which the Criminal Court acquitted the accused. Taking a broad view of the matter and having regard to the judgment of the Supreme Court in the recent case of Workmen of Bharat Fritz Werner (P) Ltd., v. Bharat Fritz Werner (P) Ltd. and Anr. reported in 1990-II LLJ 266, I am not inclined to pass an order of remand in this case as such an order would not: promote substantial justice and prolong the agony and human sufferings. Since the management has completely lost faith and grave misconduct was obviously committed by respondent No. 2 by indulging in objectionable activity of gherao, interest of justice would be better served if substantial amount of compensation is awarded to respondent No. 2 in lieu of reinstatement as was done by the Supreme Court in the abovereferred case. Dr. Kulkarni appearing for respondent No. 2 has submitted that the facts of the abovereferred case as set out in the Supreme Court judgment were very gross and the incident of gherao in the case before the Supreme Court was full of violence. In the abovereferred case, the Court surveyed the case law and held that in cases where the workman had threatened the high executives of the company and wrongfully confined them, it was not desirable and expedient to direct reinstatement of the workman. The Supreme Court directed the management to pay a sum of Rs. 1,50,000/- to the workman concerned towards compensation in lieu of reinstatement and for loss of future employment, etc. In my judgment, the incident of gherao in which Mr. Pradhan indulged along with other workmen is virtually of the same gravity as was the incident in the case before the Supreme Court. I propose to follow the same course in this case as was followed by the Honourable Supreme Court in the abovereferred case instead of remanding the matter to the Industrial Tribunal for fresh enquiry and prolong the agony of the parties.
24. Dr. Kulkarni has submitted that the incident of gherao should be viewed in a particular perspective. Dr. Kulkarni has emphasised that there was a strike of the workmen. The union had made various demands and several employees were charge-sheeted for indulging in gherao including the Secretary of the union. Dr. Kulkarni has submitted that in other cases, those employees were merely suspended for a period of four days and the management was pursuing the matter against the respondent No. 2 as and by way of victimisation. I am not impressed by these submissions of Dr. Kulkarni. Apart from the flaw in framing of the issues being Issue No. 2, I am satisfied that the interest of justice would be better served by directing the payment of compensation in lieu of reinstatement for loss of future employment, etc., all inclusive. Under the terms of the settlement dated 13th November, 1979, the workmen were paid 80 per cent of their last drawn salary as interim payment. During the pendency of this petition also the respondent No. 2 is being paid the monthly amount on the basis of last drawn salary under Section 17-B of the Industrial Disputes Act, 1947. I had requested Mr. Singhvi to prepare a statement showing the amount to which Mr. Pradhan would be perhaps entitled to if I were to grant compensation in lieu of reinstatement and follow the same course as was followed by the Supreme Court in the abovereferred case. If the present emoluments are to be taken into consideration, 40 months salary inclusive of allowances would come to Rs. 1,61,539.60. It would not be proper to deduct any amount from this amount of Rs. 1,61,539.60 having regard to the facts and circumstances of the case. Since there is a flaw in framing of the issue by the Industrial Tribunal, and the enquiry on remand would have taken some time during the pendency of which interim order for payment of salary on the basis of last drawn salary would have con-tinued. I have decided to award a sum of Rs. 2,25,000/- to Shri Pradhan as and by way of compensation in lieu of reinstatement.
25. As regards respondent No. 3 is concerned, the facts are different. The respondent No. 3 was not a party to gherao. One of the allegations made in the first charge sheet ought not to have been made at all. The word 'misconduct' connotes "lapse" and attaches stigma to an employee. It the respondent No. 3 had permitted Miss Shetty to board the bus, who was an ex-employee of the company and who had come to collect her dues, he had not done anything wrong. Every employee is bound to obey the reasonable orders of his superior. The respondent No. 3 is guilty of misconduct inasmuch as the respondent No. 3 was negligent in : performing his duty on few occasions. At least some of the allegations made by the management against respondent No. 3 were exaggerated. Whatever it may be, no useful purpose would be now served by remanding the matter to the Industrial Tribunal after so many years when substantial justice can be done to the parties having regard to the facts emerging from the record. Even though the reasons recorded by the Industrial Tribunal in paragraph 12 of the Award for granting the order of "reinstatement without back wages" and altering of punishment of dismissal are not satisfactory, the ultimate order passed directing reinstatement of respondent No. 3 without back wages is just and proper and cannot be faulted with. Section 11-A confers discretion on the Industrial Tribunal to alter the punishment. In the case of Jaswant Singh v. Pepsu Roadways Transport Corporation and Anr. reported in (1984) 1 LLJ 33 a driver of a passenger bus was found guilty of having consumed intoxicating liquor while on duty. It was observed by the Supreme Court that by his misconduct the driver had endangered the safety of those in the vehicle and also of those using the road. It was nevertheless held by the Apex Court that the Labour Court could in exercise of its jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 come to the conclusion that the punishment of dismissal was heavy and the same should be substituted by lesser punishment. In that case after holding that the driver was guilty of misconduct imputed to him, the Labour Court had directed reinstatement of driver in service without back wages. It was held by the Supreme Court in that case that the Supreme Court could not find fault with the humanistic approach of the Labour Court. The Supreme Court directed that three increments of the driver in the time scale should also be withheld for the next three years.
26. After giving my anxious consideration to the submissions on both the sides, I have come to the conclusion that no case is made out for intervention in respect of the ultimate order and the Award passed by the Industrial Tribunal in respect of Mr. J.C. Felicio. Having regard to the facts and circumstances of the case, I am of the opinion that interest of justice would be better served by rejecting the challenge of both parties in respect of the award pertaining to Mr. J.C. Felicio instead of remanding this old matter to Industrial Tribunal for making of the fresh award. It is well settled that the High Court is not bound to set aside the order merely because it is not exactly in conformity with the provisions of law if the impugned order or award is otherwise just and reasonable. I am of the opinion that the award of the Industrial Tribunal pertaining to Mr. J.C. Felicio is just and reasonable although I do not completely share the reasoning of the Tribunal in this behalf. Dr. Kulkarni has argued that the Tribunal ought to have awarded full back wages to Shri J.C. Felicio. Having regard to his blame worthy conduct and some acts of misconduct duly proved to the satisfaction of the Tribunal, the Tribunal was justified in altering the punishment and exercising its discretion in respect of Mr. J.C. Felicio by directing reinstatement without back wages.
27. In the result, I pass the following common order in Writ Petition No. 2973 of 1987 and Writ Petition No. 972 of 1988:
I. The impugned award dated 9th : July 1987 made in Reference (IT) No. 230 of 1979 is set aside insofar as it directs reinstatement of Mr. V.V. Pradhan.
II. E. Merck (India) Ltd. shall pay a sum of Rs. 2,25,000/- (Rupees two lacs and twenty-five thousand only) to Mr. V.V. Pradhan towards compensation in lieu of reinstatement for loss of future employment in full and final settlement on or before 31st January 1991, without deducting any amount already paid to Mr. Pradhan so far. Till 31st January 1991, interim order passed by this Court shall continue. In default of payment of the said amount before 31st January 1991, the employer to pay the said amount to Mr. V.V. Pradhan with interest at rate of 15% per annum from 1st February 1991 till payment. The abovereferred sum of Rs. 2,25,000/- is inclusive also for all terminal dues, save and except the Provident Fund amount to the credit of Mr. V.V. Pradhan as on 8th December, 1978, which amount shall be separately paid to him without forfeiture of any amount on account of alleged dismissal or otherwise.
III. I direct that the above payment of Rs. 2,25,000/- shall be spread over during the period commencing from 1st January, 1979 and Mr. V.V. Pradhan shall be entitled to the benefit of Section 89 of the Income-tax Act, 1961. I am adopting this course following the judgment of the Hon'ble Supreme Court in the case of Sundaram Motors Pvt. Ltd. v. Ameerjan, (1985) 2 LLJ 22.
IV. No case for interference is made out by either side in respect of the award dated 9th July, 1987 in Reference (IT) No. 230 of 1979 insofar as the said award pertains to Mr. J. C. Felicio. The operative part of the said award directing reinstatement without back wages coupled with other directions set out therein is confirmed.
V. Petitioner No. 1 shall not be entitled to claim refund of any amount already paid to Mr. Felicio under Section 17-B of the Industrial Disputes Act, 1947 or otherwise.
VI. Petitioner No. 1 shall reinstate the said Mr. J.C. Felicio on or before 1st February 1991. Till then, interim order passed by this Court shall be complied with.
VII. Having regard to the facts and circumstances of the case, there shall be no order as to costs.
Ordered accordingly.