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[Cites 24, Cited by 0]

Madras High Court

K.Parasuraman vs The Management on 4 April, 2014

Author: R.Mahadevan

Bench: R.Mahadevan

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:  04.04.2014

CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN

W.P.(MD)No.8459 of 2006

K.Parasuraman	 			 ... Petitioner
			
Vs.

1.The Management,
   Southern Petro Chemical Industries Corporation Ltd., [Spic],
   Tuticorin.

2.The Presiding Officer,
   Labour Court, Tirunelveli.	    	  ... Respondents

PRAYER

Writ Petition is filed under Article 226 of the Constitution of India
for the issue of a Writ of Certiorarified Mandamus to call for the Award, dated
21.04.2003 in I.D.No.79 of 1996, passed by the second respondent and quash the
same and direct the first respondent to reinstate the petitioner with back
wages, continuity of service.

!For Petitioner	        ... Ms.D.Geetha
^For Respondent No.1	... Mr.Jerin Mathew
			For M/s.Ajmal Associates
				

:ORDER

*********** The petitioner has challenged the Award of the labour court in I.D.No.79 of 1996, dated 21.04.2003, confirming the order of dismissal from service passed by the first respondent.

2. The Brief facts of the case are as follows:-

The petitioner joined as a Plant operator Trainee in the year 1982 and was later absorbed as Technician (Operation) in the year 1983. He was later promoted as Senior Technician and continued as such till his dismissal, on 29.11.1995. A strike was called for by the technicians protesting the suspension of one Sundaragavan, on 12.04.1995. The petitioner, who came to attend his night duty, also participated in the strike. Subsequently, the dispute was solved between the management and the union. However, the first respondent took disciplinary action against the president, vice-president, treasurer of the union and also charge sheeted 26 workers and served discharge memo on ten probationers. The charge against the petitioner was that he forced the employees to participate in the stay-in-strike. The petitioner opposed the charges and based on the report of the enquiry officer, the petitioner was dismissed from service. Aggrieved by the same, the petitioner raised an I.D before the second respondent, which was dismissed. Aggrieved over the same, the petitioner is before this Court.

3. The learned counsel appearing for the petitioner, assailing the impugned award, contended that the award of punishment of dismissal from service is arbitrary and amounts to discrimination and the Labour Court failed to see that based on unreliable management witnesses, the petitioner was found guilty, even though others were exonerated. The learned counsel also contended that none of the witnesses have deposed that the petitioner threatened them to participate in the strike and the Labour Court also failed to consider that since the employees were assembled in a open space in the strike, they were always free to leave. The learned counsel further contended that the management witnesses, who were probated, were threatened to depose against the petitioner and later exonerated of the charges and confirmed. The learned counsel further contended that most of the persons charged with the offences including some of the witness were exonerated of the same charges and therefore the punishment is discriminatory and vindication of active participation in Union Actitivies. The learned counsel, placing reliance upon the Judgments in Management of Indian Oil Corporation Vs.Presiding Officer II Additional Labour Court and others reported in 1993 LLJ 1148 and in Bongaigaon Refinery & Petrochemicals Ltd., Vs.Girish Chandra Sarma reported in 2007 (7) SCC 206, sought for setting aside of the Award and reinstatement with back wages and other benefits.

4. Per contra, the learned counsel appearing for the first respondent contended that there is nothing perverse in the Award of the Labour Court confirming the order of dismissal from service. The learned counsel also contended that it is at the instigation of the petitioner, the stay in strike got a momentum and the petitioner was the root cause in breaking the industrial harmony. The learned counsel for the first respondent also placed reliance upon the following judgments:-

(i).Divisional Manager, Apsrtc Vs.E.Raja Reddy and another reported in 1999 (5) ALT 450,
(ii). Management of Madurantakam Co-op Sugar Mills Ltd., Vs.S.Viswanathan, reported in AIR 2005 SC 1954,
(iii). L&T Komatsu Ltd., Vs. N.Udayakumar reported in 2008 (1) LLN 783,
(iv). Cuddalore District Central Co-operative Bank Ltd., Vs.Presiding Officer, Labour Court, Cuddalore, reported in 2013 (3) LLN 748, [Mad].

[v]. The Managment of V.G.Textiles [P] Limited, Pethappampatti Udumalpet Vs. The Presiding Officer, Labour Court, Coimbatore and others, reported in 2013 (3) LLN 732, Mad.

(v). Southern Petrochemical Industries Corporation Limited, Vs.The Presiding Officer, dated 05.07.2011, [W.P(MD)Nos.8071 and 14796 of 2010 and sought for dismissal of the Writ Petition.

5. I have considered the above submissions and perused the records carefully.

6. In the decision in Management of Indian Oil Corporation Vs.Presiding Officer II Additional Labour Court and others reported in 1993 LLN 1148, relied upon by the petitoner, the Division Bench of this Hon'ble Court has held as follows"

"5. Let us first examine the postion of law on this aspect before going to the factual details. It is settled postiion of law that when the evidence with regard to the misconduct of a number of workmen is identical, the employer must give rational or reasonable explanation for awarding different punishments to the different workmen on the same evidence. In other words, if different workmen are similarly placed with regard to the nature of evidence let in against them by the management in the domestic enquiry and if the workmen are covered by the same set of facts and circumstances, the employer cannot single out a particular workman for discriminatory treatment while awarding punishment. If some of the workers are arbitrarily weeded out for discriminatory and more severe treatment than those who were similarly situated, the Courts will not hesitate to frown up such discriminatory treatment."

7. In the decision in Bongaigaon Refinery & Petrochemicals Ltd., Vs.Girish Chandra Sarma, reported in 2007 (7) SCC 206, the Apex Court has held as follows:

"18. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three Committees was unanimous decision by all these members participating in the negotiations and the price was finalised accordingly. It is not the respondent alone who can be held responsible when the decision was taken by the Committees. If the decision of the committee stinks, it cannot be said that the respondent alone stinks; it will be arbitrary. If all fish stink, to pick one and say only it stinks is unfair in the matter of unanimous decision of the Committee."

8. In the decision in Divisional Manager, Apsrtc Vs.E.Raja Reddy and another reported in 1999 (5) ALT 450, relied upon by the learned counsel for the first respondent, the Apex Court has held as follows:

28. In Sadhu Ram v. Delhi Transport Corporation, the Supreme Court observed that:
"wide jurisdiction conferred under Article 226 has to be exercised with great circumspection. The High Court cannot constitute itself into an appellate Court over Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings of jurisdictional facts which the Tribunal is well competent to decide."

29. Very often reliance is placed upon the observations made by the Supreme Court in Gujarat Steel Tubes Ltd v. Gujarat Steel Tubes Mazdoor Sabha, in support of the contention that even the High Court under Article 226 of the Constitution of India can reappraise the evidence and material available on record in the same manner as that of the Labour Court/Tribunal in exercise of its power under Section 11-A of the Act. But, in my considered opinion, the observation made in Gujarat Steels (supra) that: "What the Tribunal may, in its discretion, do, the High Court too, under Article 226, can, if facts compel, do." is required to be understood in the context of the principle and the ratio laid down by the Apex Court in the very same judgment.

30. The Supreme Court in the very same judgment observed:

"broadly stated, the principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi-judicial Tribunals or administrative bodies exercising the quasi-judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the State under which they act. So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can be no ground for interference..... It is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."

31. The Supreme Court in fact in Gujarat Steels Tubes (supra), approvingly referred to the decision of the Gujarat High Court in Navinchandra v. Manager, Ahmedabad Co-op. Department Stores Ltd., 1978 (19) Guj.LR 108, in which the Gujarat High Court held:

"that the amended Article 226 would enable the High Court to interfere with an Award of the Industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to which the arbitrator has arrived."

Therefore, the decision in Gujarat Steel Tubes Ltd. (supra), doesn't support the contention that this Court can reappreciate or reappraise the evidence available on record and exercise any appellate jurisdiction over the Labour Courts insofar as the findings of the facts are concerned.

32. This decision is further clarified by the Judgment in Jitender Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd., (in which one of the Judges, D.A. Deasi, J.) was a Member in Gujarat Steel Tubes case (supra). It is observed that:

"under Section 11-A 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 any such power though as a superior Court, it is vested with the right of superintendence. It is entitled to scrutinise the orders of the subordinate Tribunals within the well accepted limitations, and, therefore, it cannot be an appropriate case to quash the award of the Tribunal and therefore upon remit the matter to it for fresh disposal in accordance with law and directions, if any. But, it is not entitled to exercise the powers of the Tribunal and substitute an award in the place of one made by the Tribunal or substitute one finding for another and similarly one punishment for another, as in the case of an appeal where it lies to it.

33. Therefore, this Court while exercising its power of judicial review, may issue a writ of certiorari to correct the errors of jurisdiction when the inferior Court or Tribunal act without jurisdiction or in excess or fails to exercise it. The writ of certiorari can also be issued if there is an error of law, which is apparent on the face of the record. Of course, this Court also would interfere if the findings are based on suspicion, conjectures or surmises or no reason is present in the facts and circumstances of the case. Such a finding may be characterised to be perverse and based on no evidence and such a findings are required to be corrected by issuing a writ of certiorari. This Court, however, acting in certiorari jurisdiction does not act as an appellate Court.

34. This Court while considering the validity of an Award passed by the Labour Court/Tribunal Under Section 11-A of the Act, in exercise of its jurisdiction under Article 226 of the Constitution of India, does not exercise any appellate jurisdiction. It is not an appeal under Section 11-A of the Act to this Court. No doubt the Labour Court exercises the power under Section 11-A of the Act like that of an appellate Court and accordingly evaluate the decision of the disciplinary authority.

35. The power to issue appropriate writs in the nature of writ of mandamus, Certiorari, Prohibition and Quo-warranto is conferred upon this Court by the Constitution. The provisions contained in ordinary enactments can neither expand nor limit the jurisdiction of this Court under Article 226 of the Constitution of India to issue appropriate writs. Therefore, the provisions in Section 11-A of the Act shall have no bearing whatsoever in relation to parameters of judicial review by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. In fact, it is not the question of jurisdiction, as admittedly, the jurisdiction of this Court is very wide; but, the question is exercise of its jurisdiction. The jurisdiction may have to be exercised in accordance with the well known principles and self imposed restrictions upon the exercise of that jurisdiction. At any rate, the distinction between the appellate power and the judicial review jurisdiction has to be borne in mind, they being guiding principles for exercising the jurisdiction under Article 226 of the Constitution of India. Proportionality of the Punishment It is already observed that the Labour Court/Tribunal does not enjoy any untrammeled power or jurisdiction to set aside the order of discharge or dismissal and direct reinstatement of the workman and award lesser punishment in lieu of discharge or dismissal. Such an award may be passed by the Labour Court/Tribunal only in case where it is satisfied that the order of discharge or dismissal was not justified. Such satisfaction would depend upon the appraisal of material and evidence on record. In that process the Labour Court/Tribunal is bound to record that the order of discharge or dismissal is shockingly disproportionate to the established misconduct. Such conclusion can be arrived at by the Labour Court/Tribunal only after appraisal of the material on record. Such jurisdiction and power to interfere with the order of the disciplinary authority is conferred upon the Labour Court/Tribunal to protect the workmen from the possible vindictive and arbitrary dismissal or discharge of workmen from the service on flimsy, trivial and imaginary grounds. But the satisfaction of the Labour Court/Tribunal that the order of discharge or dismissal was not justified is challengeable on the ground that it was found on no evidence and also on the ground that no reasonable person would have arrived at such satisfaction on the basis of the material available on record. Therefore, the power under Section 11-A of the Act has to be exercised by the Labour Court/ Tribunal strictly on the basis of the material on record. The wide discretion conferred upon the Labour Court/Tribunal is well structured by the provisions of Section 11 -A of the Act, itself. Discretion means that something is to be done in accordance with the Rules of reason and justice, not according to the private opinion..... according to law and not humor. It is to be not arbitrary, vague and fanciful, but legal and regular. It may be exercised within the limits Sharp v. Wakefield, 1891 ac 173.

36. This Court in exercise of its judicial review jurisdiction may not normally interfere with the discretion exercised by the Labour Court/Tribunal in awarding appropriate punishment, if such Award does not suffer from any legal infirmities. The same para meters referred to herein above would apply in judicially reviewing the award passed by the Labour Court/Tribunal even in the matter of awarding appropriate punishment in exercise of its jurisdiction under Section 11-A of the Act. This Court in appropriate cases may interfere with the Award passed by the Labour Court/Tribunal when it substitutes the punishment and awards a lesser punishment than the one awarded by the disciplinary authority in an arbitrary and fanciful manner. Of course, this Court may interfere if the discretion is not properly exercised by the Labour Court/ Tribunal. Likewise this Court can also interfere with the Award of the Labour Court/ Tribunal when it fails to exercise its jurisdiction under Section 11-A of the Act to consider the desirability of awarding of lesser punishment in lieu of discharge or dismissal. But the awarding of appropriate punishment if depends upon appraisal of material available on record, the only course left open for this Court is to remit the matter for fresh consideration by the Labour Court.

37. However, a Full Bench of this court in G.R. Reddy v. Presiding Officer, Labour Court, (FB), by placing reliance upon the judgments in State of Orissa v. Sbidyagushan, and State Bank of India v. Samarendra Krishore, observed that:

"From a conspectus of decided cases, the golden thread which is noticed throughout, is that this Court while exercising the power of judicial review under Article 226 of the Constitution cannot lightly interfere with the punishment imposed by the disciplinary authority, since the High Court does not sit as a Court of appeal over the decision of the authority holding domestic enquiry against a public servant. It is not open to the High Court to reappraise the evidence and to arrive at an independent conclusion on the evidence adduced in the case. However, the grey area where the High Court can interfere is only where during the course of departmental proceeding, principles of natural justice were violated causing prejudice to the delinquent officer. The High Court may interfere with the punishment when the same is shockingly disproportionate to proved guilt or on misconduct no reasonable prudent man would award such a punishment which is so arbitrary and unreasonable attracting application of Article 14 and in such circumstances, the High Court may well be justified in treating such cases as amounting to discrimination calling for redressal under Article 14 of the Constitution of India. Even here, this Court while exercising the power of judicial review may not substitute the punishment which is reasonable according to its opinion, for the punishment awarded by the disciplinary authority. It should always be left to the disciplinary authority to impose appropriate punishment in the circumstances of the case. Such power may be exercised by a Court of appeal and not by the High Court while exercising jurisdiction under Article 226 of the Constitution of India. For all these reasons, we are of the opinion that in cases of misappropriation of public funds, whether the sums so misappropriated are small or large, deterrent punishment is always called for in the interest of administration and what should be the appropriate punishment in the circumstances of each case, should always be left to the discretion of the disciplinary authority and the High Court while exercising judicial review under Article 226 of the Constitution of India shall not interfere and substitute itself as a Court of appeal."

38. It may be required to notice that the validity of the awards passed by the Industrial Tribunal confirming the orders of removal passed by the disciplinary authority were the subject matter of consideration before the Full Bench. The Full Bench unfortunately failed to notice even the provisions of Section 11-A of the Act which undoubtedly confers jurisdiction upon the Labour Court/Tribunal to consider the validity of an order of dismissal or discharge and award such appropriate punishment as it may consider necessary in case if it is satisfied that the order of dismissal or discharge is not justified. A very wide power is conferred upon the Labour Court/ Tribunal under Section 11-A of the Act, as observed by the Supreme Court in Fires Tone case (supra). Obviously, the said judgment was not placed before the Full Bench. In Fire Stone case (supra), the Apex Court held:

"Another change that has been effected by Section 11-A is the power conferred on a Tribunal to alter the punishment imposed by an employer. If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. Under Section 11-A, thought the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11-A"

39. Similar is the view taken by the Apex Court in Gujarat Steel (supra); Ramakant Mishra (supra) and Scooters India Ltd (supra). Unfortunately, without noticing the binding precedents, it was held by the Full Bench in O.K. Reddy case (supra) "that it should always be left to the disciplinary authority to impose appropriate punishment in the facts and circumstances of the case."

40. The Full Bench relied upon the judgment of the Supreme Court in the cases of State of Orissa (supra) and State Bank of India (supra), in which the Supreme Court held that imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it, but not the High Court-or the Administrative Tribunal, as the case may be, as the power under Article 226 is one of judicial review and it is not an appeal from a decision, but a review of the manner in which the decision was made. But in cases where the punishment is awarded by the management to a workman covered by the provisions of the Act, the Labour Court/ Tribunal is conferred with the jurisdiction under Section 11-A of the Act to go into the validity of such orders and also award lesser punishment in appropriate cases. The power is akin to that of an appellate authority. This aspect of matter has escaped the attention of the Full Bench in G.R. Reddy's case (supra). The Full Bench, in fact, has not gone into the nature and scope of the inquiry in the proceedings under Section 11-A of the Act before the Labour Court/ Tribunal. The Full Bench never considered the amplitude and the extent of power conferred upon the Labour Court by the provisions of Section 11-A. The Full Bench decision has no application whatsoever to the cases arising under Section 11-A of the Act. The ratio of the Full Bench judgment in no manner effects the jurisdiction of the Labour Court/Tribunal conferred upon it under Section 11-A of the Act. The judgment of the Full Bench in G.R, Reddy's case (supra) is the authority for the proposition that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India does not act as a Court of appeal. It is held by the Full Bench that this Court in exercise of its judicial review jurisdiction may not ordinarily interfere with the quantum of punishment awarded by the disciplinary authority. The observation that the disciplinary authority is clothed with the exclusive jurisdiction to award punishment is required to be understood as applicable to cases where the provisions of Section 11-A of the Act are not applicable. After a Rain _of Rulings and Storm of submissions, a word about Relief We have already noticed the charges levelled against the first respondent herein. The Labour Court after referring to the entire material on record held that none of the charges framed against the first respondent were proved. The Labour Court recorded its findings in respect of each of the charges. The Labour Court in categorical terms held that charge No. 1 is not proved for the reasons stated in the award. Sofar as charge No.2 is concerned, the Labour Court in categorical terms held that the charge is unacceptable on the face of it. The other charges were also held not proved. The Labour Court observed that on the basis of some corrections in one or two entries in the Statistical Return (SR) it is not possible to presume that the first respondent reissued the tickets. The findings are based on appraisal of the material on record. The Labour Court having considered the evidence and the documents produced by the parties during the course of domestic inquiry disagreed with the findings of the disciplinary authority. Re-appreciation of the evidence by the Labour Court in exercise of its jurisdiction under Section 11-A is not only permissible; but it is mandatory duty of the Labour Court/Tribunal to go into the merits of the case by re- appreciating the material on record.

41. The first respondent-workman filed a Memo before the Labour Court, at the threshold stage expressing his no objection for the validity of the domestic enquiry and accordingly requested the Labour Court to proceed to decide the matter under Section 11-A of the Act. There was no request whatsoever by the petitioner to lead any further evidence in support of its order removing the first respondent from service. The Labour Court therefore, proceeded to consider the material on record and arrived at its own conclusions. The order does not suffer from any infirmity whatsoever requiring any interference by this Court. The Labour Court is entitled to re-appreciate the evidence and substitute its own finding for that of the disciplinary authority. Such a re-appreciation of the evidence and the material on record is permissible even in cases where the Labour Court is required to consider the matter in exercise of its power under Section 11-A of the Act. The Labour Court is entitled to go into the whole question afresh even in cases where there is an admission as to the validity of the domestic enquiry. The domestic inquiry may have been held in accordance with the principles of natural justice, but that does not mean that the workman cannot raise any dispute with regard to the findings arrived at by the disciplinary authority.'

9. In the decision in L&T Komatsu Ltd., Vs. N.Udayakumar reported in 2008 (1) LLN 783, the Apex court has held as follows:

"11. Again in M.P. Electricity Board v. Jagdish Chandra Sharma7 this Court dealt with the matter as follows: (SCC pp. 406-08, para 8) "8. The question then is, whether the interference with the punishment by the Labour Court was justified? In other words, the question is whether the punishment imposed was so harsh or so disproportionate to the charge proved, that it warranted or justified interference by the Labour Court? Here, it had been clearly found that the employee during work, had hit his superior officer with a tension screw on his back and on his nose leaving him with a bleeding and broken nose. It has also been found that this incident was followed by the unauthorised absence of the employee. It is in the context of these charges found established that the punishment of termination was imposed on the employee. The jurisdiction under Section 107-A of the Act to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. These aspects are well settled. In U.P. SRTC v. Subhash Chandra Sharma8 this Court, after referring to the scope of interference with punishment under Section 11-A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived at that the punishment was shockingly disproportionate to the nature of the charge found proved, before it could interfere to reduce the punishment. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh9 this Court after referring to the decision in State of Rajasthan v. B.K. Meena10 also pointed out the difference between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis--vis the establishment, interference with punishment of dismissal could not be justified. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate11 this Court again reiterated that the jurisdiction to interfere with the punishment should be exercised only when the punishment is shockingly disproportionate and that each case had to be decided on its facts. This Court also indicated that the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd. v. N.B. Narawade4. This Court summed up the position thus: (SCC p. 141, para 20) '20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment.' It may also be noticed that in Orissa Cement Ltd. v. Adikanda Sahu5 and in New Shorrock Mills v. Maheshbhai T. Rao6 this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated 'punishment of dismissal for using abusive language cannot be held to be disproportionate'. If that be the position regarding verbal assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Muriadih Colliery of Bharat Coking Coal Ltd. v. Bihar Colliery Kamgar Union12 this Court after referring to and quoting the relevant passages from Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh9 and Tournamulla Estate v. Workmen13 held: (SCC p. 336, para 17) 'The courts below by condoning an act of physical violence have undermined the discipline in the organisation, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under Section 11-A of the Act to interfere with the punishment of dismissal.' "

12. When the factual background is considered in the light of principles indicated above, the inevitable conclusion is that the Labour Court and the High Court were not justified in directing the reinstatement by interference with the order of termination. The orders are accordingly set aside. The order of termination as passed by the authority concerned stands restored. The appeal is allowed with no orders as to costs."

10. In the decision in Cuddalore District Central Co-operative Bank Ltd., Vs.Presiding Officer, Labour Court, Cuddalore, relied upon by the first respondent reported in 2013 (3) LLN 732, this Court has held as follows:

"9. As rightly pointed out by the learned counsel for the petitioner, the Labour Court has found that the enquiry was held fairly and properly, the strike was illegal, the workmen had committed misconduct and that the action of the Management is not a measure of vindictive action. The Labour Court in Paragraphs 19, 21, 22 & 24 has categorically come to the conclusion that the dismissal of the workmen is very appropriate in law. It is not as though the Labour Court had found that the dismissal is not sustainable in law. Having come to the conclusion that the dismissal is strictly in accordance with law which does not require any interference at the hands of the Court, it is not at all open for the Labour Court to order for payment of Compensation on humanitarian grounds. In this regard, I may refer to the decision of the Hon'ble Supreme Court in Hombe Gowda EDN Trust and another Vs. State of Karnataka and others, 2006 (1) LLN 451, SC, as referred to above, wherein in Paragraph 29, the Hon'ble Supreme Court has held as follows:-
30. This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to this Court was bound to follow the decisions of this Court which are applicable to the facts of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same.

11. In the decision in Cuddalore District Central Co-operative Bank, Ltd,., rep by its Special Officer No.1, Cuddalore Vs. Presiding Officer, Labour Court, Cuddalore, reported in 2013 (3) LLN 748, relied upon by the learned counsel first respondent, this court has held as follows:-

"55. Thus, the finding recorded by the Labour Court in paragraph 13 of its award, in favour of the second respondent, in respect of the first limb of the first charge is completely perverse and exhibits a complete negation of the allegations, the defence and the evidence available on record. There can be no dispute about the fact that a Labour Court cannot plead a defence that the workman himself did not take. The Labour Court cannot record any finding of fact on the basis of such a pleading innovated for the first time in the proceedings before the Court. Therefore, at least insofar as the first limb of the first charge, the award of the Labour Court is completely perverse and not in accordance with the principles of law, on which, a Labour Court ought to test an order of dismissal from service of a workman. Insofar as the second limb of the first charge is concerned, the Domestic Enquiry Officer held the charge proved on the basis of the oral evidence of Srinivasa Udayar (MW3). There was no cross examination of MW3 by the workman. The fact that he remitted Rs.8,011.75 on 26.02.1986 went unchallenged. The fact that the receipt had an alteration of the figure Rs.6,000/- as Rs.1,000/- and the amount of Rs.8,011.75 into Rs.3,011.75, is borne out by the receipt itself. Therefore, what was remitted by MW3 on 26.02.1986 was Rs.8,011.75. If what was brought as receipt was only Rs.3,011.75, the balance of Rs.5,000/- should be somehow accounted for. This amount of Rs.5,000/- is written as expenditure under three different headings. For two headings, there are no supporting vouchers. The third heading relates to a transaction by Sadasiva Udayar (MW2). But, he claimed that he did not do any transaction in his savings bank account on that date. Therefore, the Domestic Enquiry Officer held the second limb of the first charge proved."

12. Finally, the learned counsel for the first respondent has relied upon an order of this Court in W.P(MD).Nos 8071 of 2005 and 14196 of 2010, but the said judgment seems to be aiding the cause of the petitioner, as it reflects that some of the employees, against whom charges were made, were exonerated by the Labour Court and the punishment of dismissal as against some employees were reduced by this Court.

13. Therefore, it is clear that on the same charges, some employees, who were active members of the union, have been exonerated. Though there is no quarrel in the principle in the other judgments, relied upon by the learned counsel for the first respondent, this Court is of the opinion that each case has to be analysed based on the factual matrix of the case on hand and therefore the judgments are not applicable to the case on hand. No doubt, Strike is against public interest and disrupts the industrial harmony. On the contrary, this Court is of the opinion that upon perusal of the award, there is no concrete material to show that the petitioner instigated the strike for the following reasons.

14. Upon perusal of the award, it is evident that the Labour Court has confirmed the order of dismissal based on the evidence of seven management witnesses. The statement of the witnesses are extracted in the award. According to the Labour Court, there are no contradictions in the statement of the witnesses and from the statement, it is evident that the petitioner is the instigator. But the Labour Court has not rendered any finding regarding admissibility of the evidence of the management witnesses. Upon examination of the award and the statements recorded therein, this court is of the view that there are indeed contradictions in the statement of the witnesses.

15. Firstly, the basis of the allegations that the employees of the first shift were not permitted to go out, the employees in the second shift were not relieved and the employees reporting for duty were not permitted to report duty and forced to participate in the stay-in strike. This court is of the view that all three are not practically possible. The first shift would usually be from 6.00 AM to 2.00 PM., second shift from 2.00 PM to 10.00 PM and third shift from 10.00 PM to 6.00 AM. Unless, the employees of the first shift are relieved, the second shift employees cannot commence their work. The petitioner on that day was in third shift. If the first shift employees were not permitted to go out, then it would imply that the problem had commenced before 2.00 PM, when the petitioner was nowhere in the scene. The petitioner had entered the premises only at about 10.00 PM. The perusal of the award shows that there was disruption even by that time. Further, It can be seen from the award that RW1 was a hear say witness. RW2 does make any allegation against the petitioner. RW3 has claimed that he was attending the night shift i.e third shift and he had relieved one Ponnusamy and in his chief has stated that the petitioner had to relieve one singarayan. He is also only a hear say witness and has stated that he saw parasuraman moving near S.A Plant. He has claimed to have spoken to Kalaikumar,Daranidran and saravanan through pager. It is pertinent to mention here, that in pager, only messages can be exchanged and no voice calling is possible. Rw4, Ahmed has claimed that he was waiting to be relieved. Categorically he has stated that he was waiting for the petitioner to relieve him and that the petitioner asked him to come to ALF 3 ground floor and then asked him to come to PA Ground floor and then took him and Daranidran to PA Ground Floor. Firstly, RW3 has deposed that the petitioner was supposed to relieve singarayan, Rw4 has claimed that the petitioner has to relieve him. Yet another contradiction is that when a person asks somebody to go to a particular place, it is obvious he is not going to accompany them. RW4 has deposed as if the petitioner paged him to go to PA Plant and also accompanied with him to plant. Again he changes his version and states that the petitioner and Akbar came and prevented them from relieving the 2nd shift employees. Yet another fact that emanates is that the evidence only reflect that the petitioner has not threatened the employees. RW5 to RW7 were employees in probation and they have also stated that the petitioner asked them not to relieve the 2nd shift employees. However, they have not stated that the petitioner asked them to join in the strike. Neglecting all these and without giving any finding on the reliability of the evidence of the management, the Labour Court has confirmed the order of dismissal. Further, the pager through which the petitioner has asked the employees not to relieve has not been marked. As held by this Court above, what can be seen from the evidence was that the movement for strike had already commenced even before the petitioner reached the work spot and therefore the petitioner cannot be held responsible. This Court is of the opinion that the labour court ought to have set aside the order of dismissal.

16. In view of the above, the award of the Labour Court, dated 21.04.2003, made in I.D.No.79 of 1996, is set aside and the Writ Petition is allowed. The first respondent is directed to reinstate the petitioner with back wages and other service benefits. No costs.

NB To

1.The Management, Southern Petro Chemical Industries Corporation Ltd., [Spic], Tuticorin.

2.The Presiding Officer, Labour Court, Tirunelveli.