Madras High Court
The Management Of Madras Fertilisers ... vs The Presiding Officer, Additional ... on 31 August, 1989
Equivalent citations: (1990)ILLJ298MAD
ORDER Nainar Sundram, J.
1. The appellant in W.A. No. 1058 of 1983 is the management of Madras Fertilisers Limited and it shall hereinafter be referred to as the 'management'. The second-respondent in W.A. No. 1058 of 1983, who died pending the same, was in the employment of the management and he shall hereinafter be referred to as the 'employee'. The employee was the sole appellant in W.A. No. 18 of 1984. His legal representative has been brought on record as third-respondent in W.A. No. 1058 of 1983 and as the second-appellant in W.A. No. 18 of 1984 and she shall be, when occasion comes, referred to as the 'legal representative'.
2. The employee suffered an order of dismissal from service in disciplinary action at the hands of the management. He raised an industrial dispute and that was adjudicated upon by the Presiding Officer, First Additional Labour Court, Madras, who shall hereinafter be referred to as 'the Labour Court'. The Labour Court came to the conclusion that the charge of misconduct was proved and the employee was guilty of insubordination and disobedience and his past record of service, being not complimentary to the employee, also warranted the imposition of the extreme penalty of dismissal from service. As a result, the Labour Court passed an award dismissing the claim of the employee for reinstatement.
3. The employee came to this Court by way of Writ Petition No. 2029 of 1980, and the learned single Judge of this Court, who dealt with the writ petition, finding that the management, when it thought of taking into consideration and, in fact, took into consideration, the past record of service of the employee on the question of punishment, did not put the employee on notice about such move and intention on the part of the management and further the management did not afford an opportunity to the employee to make his say in the matter, held that the order of dismissal from service passed by the management and that portion of the award of the Labour Court dealing with this aspect were in violation of the principles of natural justice. Then the learned single Judge took up the other aspect as to the propriety of the punishment imposed dehors the past record of service of the employee and as to whether the Labour Court properly exercised its discretion under Section 11A of the Industrial Disputes Act, 1947, hereinafter referred to as 'the Act'. The learned single Judge observed that the charge of misconduct related to small acts of disobedience on one and the same date though the memorandum of charges was couched in such a language as though the employee committed a series of misconducts on various dates, and since the consideration of the past record of service has got to be ignored as the employee was not put on notice of the same, and called upon to make his say over the same, deemed fit to award reinstatement of the employee, but denied the employee backwages from the date of termination of service upto the date of publication of the award of the Labour Court. The writ appeal W.A. No. 1058 of 1983 by the management is directed against the order of learned single Judge, in so far it ordered reinstatement of the employee. The employee preferred W.A. No. 18 of 1984 expressing grievance over denial of back wages.
4. Mr. Sanjay Mohan, learned counsel for the management, would first submit that there is no obligation cast on the management to put the employee on notice specifically of any move on the part of the management to take into consideration the past record of service of the employee, for the simple reason, the very standing orders enjoined upon the management to take into consideration the past record of service of the employee and this is common knowledge in the service parlance of the management being a matter of Certified Standing Orders and the employee could not complain ignorance of the same. Learned counsel for the management would submit that the consideration of the past record of service, being only in the second stage of the disciplinary action, namely, after arriving at the finding of guilt, there was no need to put the employee on notice of this consideration and to insist for a contrary position would amount to insisting for a second show cause notice, which the Standing Orders themselves do not contemplate. As against this, Mr. K. S. Janakiraman, learned counsel appearing for the legal representative, would submit that though the Standing Orders contemplate an obligation on the part of the management to take note of the past record of service of the employee, yet different types of penalties are set out in the Standing Orders, for misconduct in general, without correlating the penalties to specified acts of misconduct, and it could not be stated as per the Standing Orders that for the charges levelled and proved against the employee, only the extreme penalty of dismissal from service could be imposed; and only by taking note of the past record of service of the employee, the management arrived at the conclusion that the extreme penalty of dismissal from service should be imposed, and in that context the employee ought to have been put on notice of such a move and the details of the past record of service so as to enable the employee to make his say on the question and plead for looking into the question from an extenuating angle and treat the employee leniently and this opportunity was denied to the employee by not putting him on notice of the same, and hence the past record of service must stand eschewed on the question of punishment.
5. The relevant Standing Order says :
"In awarding punishment under the Standing Order, the management shall take into account the gravity of mis-conduct, the previous record of the workman and other circumstances that may exist."
It can be stated that in the instant case the management has adhered to this Standing Order. The Standing Orders contemplate imposition of different penalties for misconduct in general and there is no correlation of penalties to specified acts of misconduct. Hence, there is force and substance in the argument put forth by the learned counsel for the legal representative that for the charges levelled and proved against the employee, it could not be stated that it was imperative as per the Standing Orders to impose only the extreme penalty of dismissal from service, and only the consideration of the past record of service of the employee, by the management, persuaded it to impose that penalty on the employee. A range of discretion is vested with the management in the matter of imposition of punishment, and for the exercise of the discretion the management shall certainly take note of and consider the past record of service of the employee. When the management exercised that discretion, of course, in accordance with the Standing Orders, and thought fit to impose the extreme penalty of dismissal from service, we will not be in order to say that the employee should not be put on notice of that move on the part of the management and the employee should not be afforded an opportunity to offer his explanation over that aspect. The past record of service of the employee seemed to have weighed with the management on the question of imposition of the extreme penalty. In fact, the ultimate order of dismissal passed by the management against the employee states :
In view of the fact that the charges levelled and proved against you are grave and serious and in view of the adverse previous record we write to inform you that you are hereby dismissed from the Company's services under clause 23.3(d) of the Company's Standing Orders with effect from April 26, 1976."
Consideration of the past record of service has very much gone into the mind of the management on the question of punishment, and the employee had been denied the opportunity to make his say and offer his explanation on this question. As to how far the employee would have succeeded in persuading the management to view the matter leniently and not to indulge in imposing the extreme penalty of dismissal from service, we cannot by ourselves guage. When we view this question from the above angle, we cannot take exception to the opinion expressed by the learned single Judge that when there was an omission on the part of the management to put the employee on notice of the move on the part of the management to take into consideration the past record of service of the employee in the matter of imposition of the punishment, there was a violation of the principles of natural justice and the same error had crept into the thinking on the part of the Labour Court. The vitiating factor was the denial of opportunity to the employee to explain the past record of service at the appropriate time. That has nullified the resultant action. Thereafter the matter has to be viewed untainted by the past record of service. This vitiating factor will not stand mollified by affording on opportunity at the subsequent stage. This has been duly taken note of by the learned single Judge, and in our view, the learned single Judge rightly eachewed the past record of service of the employee in the matter of consideration of the punishment to be imposed.
6. The second point urged by Mr. Sanjay Mohan, learned counsel for the management, is that the learned single Judge, while exercising writ jurisdiction, ought not to have interfered with the discretion exercised by the Labour Court under Section 11A of the Act and exercised that discretion himself. This is an erroneous thinking about the powers of this Court in writ jurisdiction. What the Labour Court should do and when there is an omission on the part of it to do that, this Court, in exercise of the powers under Article 226 of the Constitution of India, can certainly do. This is a proposition which has been countenanced by pronouncements of Courts, including of the highest in the land. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980-I-LLJ-137) the Supreme Court did countenance the proposition that what the Labour Court may in its discretion do, the High Court too can, under Article 226, if facts compel it do so. In Vasanti M. Shab v. All India Handloom Fabrics Co-operative Society Ltd. (1986-I-LLJ-69), a Bench of the High Court of Gujarat was inclined to consider the relevant facts for the purpose of finding out the propriety of the punishment, even though the Labour Court has not done so. This position has been taken note of by one of us (Nainar Sundaram, J.) in National Carbon Company, Madras v. Labour Court, Madras and another (1986) I. LLN 405. Hence, we could not find any substance in this line of argument on the part of the learned counsel for the management. In the said circumstances, W.A. No. 1058 of 1983 deserves dismissal.
7. Writ Appeal No. 18 of 1984 is the Writ Appeal originally preferred by the employee against the order of the learned single Judge in so far it denied back wages to him. It is not as if the employee stood exonerated of his culpable conduct as a whole. Only on the ground that the taking note of the past record of service by the management in imposing the extreme penalty of dismissal from service violated the principles of natural justice, the learned single Judge deemed fit to interfere with the award of the Labour Court holding that there has not been a proper exercise of the discretion under Section 11A of the Act. The learned single Judge, we are convinced, was in order when he deprived the employee of back wages for the period in question. The Writ Appeal lacks merits and deserves dismissal.
8. Then we find there is a subsequent event which has come into play and that is the demise of the employee. The question is what is it that the legal representative who has now come on record could get under the order of learned single Judge. That could be only in the monetary level, and that would be for the period from 28th November, 1979 upto the date of the demise of the employee which happened on 4th August, 1986. Roughly the figure works out to Rs. 72,000/-. This is what Mr. Sanjay Mohan, learned counsel for the management, stated before us. We are of the view that, on the facts and circumstances of the case, the monetary relief available to the legal representative can be fixed at a lump sum of Rs. 60,000/-. This the management shall pay to the legal representative within a period of four weeks from today. While making payment, the management can certainly take into account any disbursement made pursuant to orders of this Court. Subject to the above modification of the order of the learned single Judge, Writ Appeal No. 1058 of 1983 and Writ Appeal No. 18 of 1984 are dismissed. We make no order as to costs in both the Writ Appeals.