Kerala High Court
B.Rajagopal vs Jomy Xavier on 3 March, 2010
Bench: K.Balakrishnan Nair, P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 215 of 2009()
1. B.RAJAGOPAL, 44 YEARS, S/O.G.
... Petitioner
Vs
1. JOMY XAVIER, MANAGING PARTNER,
... Respondent
2. INDUSTRIAL TRIBUNAL IDUKKI.
For Petitioner :SRI.H.B.SHENOY
For Respondent :SRI.E.K.NANDAKUMAR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :03/03/2010
O R D E R
C.R.
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A. No.215 & 250 of 2009
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Dated 3rd March, 2010.
J U D G M E N T
Balakrishnan Nair, J.
These Writ Appeals are filed against the common judgment of the learned Single Judge in W.P.(C) Nos.5522 and 21226 of 2004. The management and the workman challenged the award of the Industrial Tribunal, Idukki, in I.D.No.42/01, by filing the above Writ Petitions. The learned Single Judge, by the aforementioned common judgment, allowed the Writ Petition filed by the management and dismissed the Writ Petition filed by the workman. Hence, these two Writ Appeals by the workman, challenging the said common judgment.
2. The brief facts of the case are the following : Unless otherwise specifically mentioned, the parties and exhibits are mentioned as referred to in W.P.(C)5522/04, from which W.A.215/09 arises. The appellant was a workman of a coffee estate in Nelliampathy, owned by a partnership firm, viz., Walliawarum Plantations. The first respondent herein is its Managing Partner. It appears, the appellant was apprehending disciplinary action against him. In that context, it is alleged that WA Nos.215 & 250 of 2009 2 he threatened the father of the Managing Partner, of dire consequences to his son, if any action is taken against him. It is also alleged that he, along with his brother threatened one of the partners of the firm, by blocking his car and entering into it. For the above mentioned alleged misconducts, disciplinary proceedings were initiated against the appellant, by issuing a charge memo dated 4.9.1997. A translation of the said charge memo reads as follows :-
"Your reply dated 10.9.1997 to the notice dated 4.9.1997 issued to you, has been received. Various assertions in your aforesaid reply having no nexus with the charges levelled against you as per notice dated 4.9.1997, are not being dealt with now. However, your explanations to the charges levelled against you are not satisfactory. Therefore, you are issued a charge sheet as hereunder.
"Due to enmity of majority of workmen employed in the coffee and cardamom estate of Walliawaram Plantations situated at Nelliampathy; you while residing in your house at Arumannoor with the knowledge of the management since 24.7.1997, along with your brother, B.Anilkumar acting on your instigation had on several occasions in the month of August 1997 threatened and caused mental pain by stating "Your son will be killed" to Mr.K.M.Xavier residing at Kadakkassery House, Kanjikuzhi, at his house, who is the father of the partners and who is leading a retired life due to sickness and old age. Further, you had on several occasions threatened him over phone stating "I am going to the estate, and if anybody dares to touch me, I will WA Nos.215 & 250 of 2009 3 kill your son."
Further, on 1.9.1997 at about 3 p.m., when Shri.Johny Joseph who is one of the owners of the estate was on his way to his house at Ayyarkunnam, you along with your brother, B.Anilkumar obstructed the car while in front of Ayyarkunnam High School, having followed and overtaken it. After obstructing the car when you shouted "Can't you issue notice terminating my services, you rascal?" and when Mr.Johny replied asking you to pose it to the person authorized for it at Kottayam and not to him, you again shouted "That useless is of no use." You forcefully got into the car stating that he should not be allowed to leave. When the car started slowly moving forward, you tried to stop the car by pushing the gear lever, tried to take off the switch key, caught hold of his hand and switched off the car by forcibly pressing the clutch. When you threatened to stab him with knife, people around gathered hearing the commotion and thereupon you alighted from the car and went off with your brother by scooter."
To conduct an enquiry into the matter, Shri.Santosh Modayil, Advocate, Kottayam-2 is appointed as the Enquiry Officer. The venue, date, time, etc. will be informed to you by him and you are required to participate in the enquiry conducted by him. In the enquiry you will be given all opportunity to cross- examine evidence against you and to adduce evidence from your side. In case of your non-participation in the enquiry, enquiry will be proceeded ex parte and further proceedings will be initiated.
Pending the said enquiry proceedings, your suspension as per notice date 4.9.1997 is hereby extended." The appellant filed his reply, denying the allegations. The WA Nos.215 & 250 of 2009 4 Enquiry Officer, so appointed, enquired into the charges. The said officer, who is an Advocate, submitted the enquiry report, finding the appellant guilty of the aforementioned two allegations. The first respondent accepted the enquiry report, after considering the objection of the appellant to the same. Based on the said report, the appellant was dismissed from service by the first respondent, by order dated 7.4.1998. The appellant/workman raised an Industrial Dispute before the Conciliation Officer, under Section 2-A of the Industrial Disputes Act, 1947 (for short, 'the Act'). Since the conciliation efforts failed, the matter was reported to the Government, which in turn, referred the dispute for adjudication, as per Government Order dated 18.6.2001. The issue referred was "Whether the dismissal of Shri.B.Rajagopal, workman by the management of Walliawarum Plantations is justifiable? If not, what relief the workman is entitled to?"
3. The Tribunal, as a preliminary issue, found that the enquiry was validly held and also came to the conclusion that the aforementioned charges were proved, based on the evidence on record. Thereafter, the Tribunal proceeded to consider whether the punishment imposed was proper, invoking WA Nos.215 & 250 of 2009 5 its power under Section 11-A of the Act. The Tribunal took the view that the punishment of dismissal awarded to the workman was too harsh and disproportionate to the gravity of the misconduct proved against him. Based on that finding, the Tribunal further ordered that the management should reinstate the workman, without back wages. The Tribunal was of the view that the denial of the entire back wages for the period he was kept out of service, will serve as adequate punishment. Ext.P1 is the award passed by the Industrial Tribunal, on 31.12.2003. The management challenged the award, by filing W.P.(C) No.5522/2004. The workman, feeling aggrieved by the denial of back wages, filed W.P.(C) No.21226/2004. The learned Single Judge, after hearing both sides, allowed the Writ Petition filed by the management and dismissed the Writ Petition filed by the workman, by the common judgment dated 28.11.2008. As mentioned earlier, the aggrieved worker has, therefore, preferred these two Writ Appeals.
4. We heard Smt.Lakshmi B.Shenoy, learned counsel for the appellant and Sri.E.K.Nandakumar, learned counsel for the first respondent/management. The main point that arises for decision WA Nos.215 & 250 of 2009 6 is whether the learned Single Judge was justified in interfering with the award, by taking the view that for the misconduct proved, the punishment imposed by the management was appropriate. According to the learned Judge, the punishment cannot be described as grossly disproportionate to the gravity of the offence proved.
5. Before going into the above point, we would refer to Section 11-A of the Act and the history behind the introduction of that Section. Section 11-A reads as follows :-
"11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.--Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require :
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take WA Nos.215 & 250 of 2009 7 any fresh evidence in relation to the matter."
(emphasis supplied) This provision was introduced by the Amending Act 45 of 1971, with effect from 15.12.1971. The Parliament decided to introduce the above provision, with the intention of conferring wider powers to the Labour Courts/Industrial Tribunals, when the dispute before them related to dismissal/discharge of workmen from service. The Apex Court, in Indian Iron and Steel Co.Limited v. Their Workmen [1958(1) LLJ 260], while dealing with the powers of the Industrial Tribunals and Labour Courts, in the matter of termination of service of the workmen, held as follows :
"In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere, (i) if there is a want of good faith (ii) when there is victimization or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice and (iv) when on the materials, the finding is completely baseless or perverse."
The objects and reasons of the Amending Act, introducing Section 11A read as follows :
"In Indian Iron and Steel Co.Limited v. Their Workmen [1958] I L.L.J. 260, the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has WA Nos.215 & 250 of 2009 8 observed that in cases of dismissal for misconduct the, Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimization, unfair labour practice, etc. on the part of the management.
2. The International Labour Organization, in its recommendation (No.119) concerning "Termination of employment at the initiative of the employer" adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination, among others, to a neutral body such as an arbitrator, a Court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given for the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages should be paid adequate compensation or afforded some other relief.
3. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power, in case wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new S.11A is proposed to be inserted in the Industrial Disputes Act, 1947."
WA Nos.215 & 250 of 2009 9
The above quoted objects and reasons would show that one of the reasons for the Parliament to introduce the above provision was the aforementioned decision of the Apex Court in Indian Iron and Steel Company's case (supra). The Parliament also took note of the recommendation of the International Labour Organization to provide a neutral body, such as an Arbitrator, a court, etc. to look into the grievance of the workman, who is aggrieved by the termination of his employment. The objects and reasons further clarify that in the case of discharge or dismissal, the Tribunal's power should not be limited and it should have power to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, it thinks fit.
6. The above legislative history would show that after the introduction of Section 11-A, the Industrial Tribunal has got wider powers to deal with the case of dismissal of a workman. Interpreting the scope of the above Section, the Gujarat High Court has rendered an illuminative judgment. M.P.Thaker, C.J., as His Lordship then was, speaking for the Division Bench of the Court in R.M.Parmar v. Gujarat Electricity Board, Baroda WA Nos.215 & 250 of 2009 10 (1982 LAB.I.C. 1031), after referring to the objects and reasons of the Amending Act, observed as follows :
"The matter regarding imposition of penalty on employees (it was so realized by International Labour Organization, an international body) could not be left solely to the discretion of the management even if the employee concerned is found to be guilty of the charge levelled against him, presumably because of the conditional approach of the disciplinary authority with his inbuilt and inherent pro-employer-anti-employee bias. That is why in obeisance to the felt needs of the time it was considered necessary to entrust this most vital function to a neutral body. With the end in view that the employees were not treated more harshly than they deserved in the context of facts and circumstances of the case, and that the employee could get the protection of the Labour Court which could be trusted to make a just and fair approach, the provision was introduced by way of an amendment. It is a benevolent power conferred on the Labour Court and has to be exercised in the spirit in which the provision has been enacted in order to further the intendment and purpose of the legislation, keeping aglow before the mental eye some very important dimensions of the matter, viz. :
(1) There is widespread unemployment in our country and it is difficult to secure a job to earn enough to keep body and soul together unlike in developed countries.
(2) The State does not provide social benefits like unemployment allowance to enable a discharged employee to sustain himself and his family to some extent, as is being done in the developed countries.
(3) In imposing punishment on an erring employee an enlightened approach informed with the demands of the situation WA Nos.215 & 250 of 2009 11 and the philosophy and spirit of the time requires to be made. It cannot be a matter of the ipse dixit of the disciplinary authority depending on his whim or caprice.
(4) Be it administration of criminal law or the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the 'end' in itself. Punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered--
1. In a disciplinary proceeding for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath.
2. The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child.
3. It is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of them. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.
4. In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide.
WA Nos.215 & 250 of 2009 12
5. When different categories of penalties can be imposed in respect of the alleged fault one of which is dismissal from service, the disciplinary authority perforce is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in service the maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without seriously jeopardising the interest of the employer the disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty why a lesser penalty cannot be imposed.
6. It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned.
7. When the disciplinary proceedings end in favour of the employee the employer has often to pay back wages say for about 5 years without being able to take work from the employee concerned. On the other hand, the employee concerned would have had to suffer economic misery and mental torture for all WA Nos.215 & 250 of 2009 13 these years. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed instead of a lighter one.
8. Every harsh order of removal from service creates bitterness and arouses a feeling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. It does more harm than good to the employer as also to the society.
9. Taking of a petty article by a worker in a moment of weakness when he yields to a temptation does not call for an extreme penalty of dismissal from service. More particularly when he does not hold a sensitive post of trust (pilferage by a cashier or by a store-keeper from the stores in his charge, for instance, may be viewed with seriousness). A worker brought up and living in an atmosphere of poverty and want when faced with temptation, ought not to, but may, yield to it in a moment of weakness. It cannot be approved, but it can certainly be understood particularly in an age when even the rich commit economic offences to get richer and do so by and large with impunity. (And even tax evasion or possession of black money is not considered to be dishonourable by and large). A penalty of removal from service is therefore not called for when a poor worker yields to a momentary temptation and commits an offence which often passes under the honourable name of Kleptomania when committed by the rich.
The Labour Court in exercising its power to reduce the penalty has to inform itself of these considerations and play the role assigned to it by its creator loyally and faithfully and in harmony with the enlightened spirit which permeates the WA Nos.215 & 250 of 2009 14 legislation."
We are in respectful agreement with the above view expressed by the Gujarat High Court.
7. In this context, we think, it will be apposite to incidentally refer to the powers of this Court, while judicially reviewing the decision of a Labour Court or an Industrial Tribunal. Though it is elementary, it has to be restated that doctrine of ultra vires is the basis of judicial review. [See Administrative Law (10th Edition-by Wade and Forsyth)].
"The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law. The juristic basis of judicial review is the doctrine of ultra vires. To a large extent the courts have developed the subject by extending and refining this principle, which has many ramifications and which in some of its aspects attains a high degree of artificiality.
Where the empowering Act lays down limits expressly, their application is merely an exercise in construing the statutory language and applying it to the facts. Thus if land may be taken by compulsory purchase provided that it is not part of a park, the court must determine in case of dispute whether the land is part of a park and decide accordingly. If the Act says 'provided that in the opinion of the minister it is not a park', the question WA Nos.215 & 250 of 2009 15 is not so simple. Reading the language literally, the court would be confined to ascertaining that the minister in fact held the opinion required. But then the minister might make an order for the acquisition of land in Hyde Park, certifying his opinion that it was not part of a park. It is essential to invalidate any malpractice of this kind, and therefore the court will hold the order to be ultra vires if the minister acted in bad faith or unreasonably or on no proper evidence. Results such as these are attained by the art of statutory construction. It is presumed that Parliament did not intend to authorise abuses, and that certain safeguards against abuse must be implied in the Act. These are matters of general principle, embodied in the rules of law which govern the interpretation of statutes. Parliament is not expected to incorporate them expressly in every Act that is passed. They may be taken for granted as part of the implied conditions to which every Act is subject and which the courts extract by reading between the lines. Any violation of them, therefore, renders the offending action ultra vires.
As with substance, so with procedure. One of the law's notable achievements has been the development of the principles of natural justice, one of which is the right to be given a fair hearing before being penalised in any way. These principles are similarly based upon implied statutory conditions: it is assumed that Parliament, when conferring power, intends that power to be used fairly and with due consideration of rights and interests adversely affected. In effect, Parliament legislates against a background of judge-made rules of interpretation. The judges have constructed a kind of code of good administrative practice, taking Parliament's authority for granted. Even where WA Nos.215 & 250 of 2009 16 sophisticated reasoning makes them appear to be frustrating Parliament's intentions they still claim, paradoxically, to be respecting them.
An act which is for any reason in excess of power (ultra vires) is often described as being 'outside jurisdiction'. 'Jurisdiction', in this context, means simply 'power', though sometimes it bears the slightly narrower sense of 'power to decide', e.g. as applied to statutory tribunals. It is a word to which the courts have given different meanings in different contexts, and with which they have created a certain amount of confusion. But this cannot be explained intelligibly except in the particular contexts where difficulties have been made. Nor should the difficulties be exaggerated. For general purposes 'jurisdiction' may be translated as 'power' with no risk of inaccuracy.
Any administrative act or order which is ultra vires or outside jurisdiction is void in law, i.e. deprived of legal effect. If it is not within the powers given by the Act, it has no legal leg to stand on. The situation is then as if nothing had happened, and the unlawful act or decision may be replaced by a lawful one."
It is also equally settled that the High Court cannot act as an appellate authority over the decisions of the Labour Courts/Industrial Tribunals. If the decision is within jurisdiction, it is no part of the business of this Court to interfere with the WA Nos.215 & 250 of 2009 17 decision of the Labour Court/Tribunal according to its opinion, regarding the propriety of the punishment. There is no dispute that broadly, the Labour Court/Tribunal has jurisdiction to adjudicate a dispute concerning the dismissal of a workman. But, while exercising that power, the Tribunal may stray out of jurisdiction, if it follows a procedure, contrary to fundamental judicial principles, like violation of the principles of natural justice, or if it omits to take into account relevant matters or takes into account irrelevant matters or misdirects itself in law. Even if after following a proper procedure, the Tribunal arrives at a conclusion which is patently perverse or one which no man in his senses would arrive at, then also it can be described that the Tribunal has strayed out of jurisdiction because the courts would say, the Parliament cannot be intended to have conferred power on the Tribunal to arrive at such a perverse decision. It is also well settled in law that a difference of opinion or a different view was possible on the facts of the case, is also not a ground for this Court to interfere with the decision of an inferior tribunal. Lord Hailsham of St.Marylebone L.C. In re W. (An infant) (1971) A.C.682) put it felicitously that two reasonable persons can WA Nos.215 & 250 of 2009 18 perfectly reasonably come to opposite conclusions on the same set of facts, without forfeiting their title to be regarded as reasonable. The above principle has been followed by the Apex Court in several decisions. So, in this case, the point to be considered is whether, based on the proven misconduct, if the Tribunal takes the view that the punishment was disproportionate to the gravity of the offence; so, the punishment of dismissal was not warranted and denial of back wages alone would be sufficient, can it be said to be a decision outside jurisdiction or whether it can be described as one which no man in his senses would take. We think, it is difficult to condemn the decision of the Tribunal in that manner. A plausible view has been taken on the facts. If we were acting as the original authority, we might have taken a different view, but that will not enable this Court to interfere with the decision of the Industrial Tribunal.
8. Yet another aspect has also cropped up during the hearing of the Writ Appeals, though it was not raised during the course of argument before the learned Single Judge. Going through the memo of charges, the translation of which we have quoted above, we have serious doubts whether those WA Nos.215 & 250 of 2009 19 commissions and omissions from the part of the workman will amount to a misconduct at all, for the purpose of taking disciplinary action. If the view of the management is accepted, we will be adding a new condition to the conditions of employment of the workmen, that is to respect or not to misbehave towards the near relatives of the persons in management of the industrial establishment or the employer concerned. In this case, the first allegation is that the workman misbehaved towards the father of the Managing Partner of the establishment. The second allegation is that the workman along with his brother misbehaved towards a partner of the firm, who is not directly concerned with the day-to-day affairs of the establishment. In this context, we think, it is apposite to quote the decision of the Apex Court in A.L.Kalra v. The Project and Equipment Corporation of India Ltd. (AIR 1984 SC 1361) wherein, it was held as follows :-
"22. Rule 4 bears the heading 'General'. Rule 5 bears the heading 'misconduct'. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the WA Nos.215 & 250 of 2009 20 company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telesope R.4 into R.5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in Glaxo Laboratories(I) Ltd. v. Presiding Officer, Labour Court, Meerut (1984)1 SCC 1 : (AIR 1984 SC 505), where this Court held that 'everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty'. Rule 4 styled as 'General' specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub-clauses of R.5 which specifies misconduct. It would therefore appear that even if the facts alleged in the two heads of charges are accepted as wholly WA Nos.215 & 250 of 2009 21 proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that R.25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him. Rule 4 does not specify a misconduct."
We are not told that good behaviour towards near relatives of the persons in management of the firm, is one of the conditions of service of the workers. Unless it is a condition of service, we think, going by the above principles laid down by the Apex Court, it is doubtful whether the allegations in the charge-sheet could have been the subject-matter of disciplinary action. But, it does not mean that what the workman did was correct or not wrong. But, the remedy of the management was to resort to the ordinary remedies available to it before the concerned civil/criminal court. No such contention was raised during the course of the argument before the learned Single Judge or the Tribunal. Though this point was not urged before the lower forums, we think, this Court is not prevented from looking into what is manifest on the face of the record. The learned Single Judge has quoted the charge-sheet, in the judgment under appeal and went on to render the decision. So, if the allegations in the charge memo do not disclose any WA Nos.215 & 250 of 2009 22 misconduct warranting disciplinary action, we think, we are within our powers to advert to that and render a decision.
9. Now, we will come to the decisions relied on by the learned Single Judge, to interfere with the decision of the Industrial Tribunal. They are the decisions of the Apex Court in U.P.State Road Transport Corporation v. Subhash Chandra Sharma and others [(2000) 3 S.C.C.324] , Usha Breco Mazdoor Sangh v. Management of M/s.Usha Breco Ltd. & another (2008 AIR SCW 6783), Mahindra and Mahindra Ltd. v. N.B.Naravade [2005-I-LLJ 1129], Hombe Gowda Educational Trust and another v. State of Karnataka and others [(2006) 1 SCC 430], M.P.Electricity Board v. Jagdish Chandra Sharma [(2005) 3 SCC 401], Muriadih Colliery of Bharat Coking Coal Ltd. v. Bihar Colliery Kamgar Union [(2005) 3 SCC 331] and Tata Engineering and Locomotive Co.Ltd. v. N.K.Singh [(2006)12 SCC 554]. After referring to the above decisions, the learned Single Judge has held as follows :
"Considering the gravity of the misconducts found to have been committed by the workman in the light of the above decisions, I have no doubt in my mind that the proved misconducts were serious enough to warrant the punishment of dismissal from service. In any way, it is settled law that the WA Nos.215 & 250 of 2009 23 imposition of punishment on a delinquent workman is a managerial function with which the Tribunal and this Court can interfere only if the punishment imposed by the management is shockingly disproportionate to the gravity of the misconducts. On consideration of the misconducts found to have been committed by the workman in this case, I am not satisfied that the punishment of dismissal is shockingly disproportionate to the gravity of the misconducts. Therefore, I am satisfied that the Tribunal was in error in invoking powers under Section 11A of the Industrial Disputes Act to interfere with the punishment imposed by the management."
The general principle emerging from the above decisions of the Apex Court is that the Tribunal can interfere with the punishment, if only it is shockingly disproportionate to the gravity of the misconduct proved. The Tribunal took the view that the punishment is grossly disproportionate to the gravity of the misconduct proved. This Court can interfere with the same, if only the learned Judge found that the said view of the Tribunal is one which no man in his senses would take. We notice that the learned Judge has acted, as if this Court was sitting in appeal over the decision of the Industrial Tribunal. If it was exercising the appellate power, the finding of the learned Single Judge is perfectly correct. But, when it comes to judicial review, other principles govern the field. As mentioned earlier, difference of WA Nos.215 & 250 of 2009 24 opinion does not afford a ground for judicial review. Administrative Law (Wade and Forsyth-10th Edition) deals with the above aspect in the following manner :-
"There is ample room, within the legal boundaries, for radical differences of opinion in which neither side is unreasonable. A number of statements to this effect were made in the Court of Appeal and the House of Lords in the case of the Tameside schools, discussed below. Lord Denning MR pointed out the error of confusing differences of opinion, however strong, with unreasonableness on the part of one side or the other. One party may call the other 'quite unreasonable' when he is well within the legal limits of reasonableness. This was the distinction which the Secretary of State failed to make, as the House of Lords emphatically confirmed. Lord Diplock said:
The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.
In the same vein Lord Hailsham LC has said that 'not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable'."
In the light of the above principles, the Tribunal's view regarding punishment being a plausible view, cannot be interfered with.
10. Some of the decisions of the Apex Court mentioned above, deal with the physical violence/abuse from the WA Nos.215 & 250 of 2009 25 part of the workman, against the officers of the management or their contractors. In that context, the punishment of dismissal was sustained and where it was interfered with by the Tribunal or High Court, the same was reversed by the Apex Court. But, we notice that in those cases, the misconducts or abuse or physical violence took place in the work place or in the course of employment/duty. But, in this case, the misconduct took place far away from the work place and further, the proven misconduct was not committed against a person or persons directly involved in the management of the establishment. So, if the Tribunal takes the view that for the misconduct proved in this case, the punishment imposed is grossly disproportionate, we think, this Court is not justified in condemning the said decision as perverse or one which no man in his senses would take.
11. In this context, we think, it is apposite to quote the decision of the Apex Court, interpreting the provisions of the Constitution, dealing with the welfare of workers. The Apex Court in U.P.State Electricity Board and another v. Hari Shanker Jain and others (AIR 1979 SC 65) held as follows:
"4A. Before examining the rival contentions, we remind ourselves that the Constitution has expressed a deep WA Nos.215 & 250 of 2009 26 concern for the welfare of the workers and has provided in Art.42 that the State shall make provision for securing just and humane conditions of work and in Art.43 that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure etc. These are among the Directive Principles of State Policy. The mandate of Art.37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any Court, the principles are 'nevertheless fundamental in the governance of the country' and 'it shall be the duty of the State to apply these principles in making laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy."
The preamble of our Constitution, inter alia, declares ours as a socialistic republic. Socialism of all hues are primarily concerned with the welfare of the workmen and the under-privileged. In this context, we think, it is apposite to quote the views of the Apex Court in a very recent decision reported in Harjinder Singh v. Punjab State Warehousing Corporation (S.C.) [2010 (124) WA Nos.215 & 250 of 2009 27 FLR 700]. In the said decision, G.S.Singhvy, J. held as follows :
"23. Of late, there has been a visible shift in the Courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional Courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side- lanes in the jurisprudence developed by this Court in three decades.
x x x x x x x x x x x x x x x x x x x x It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the Courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer
- public or private."
Ashok Kumar Ganguly, J., in a concurring judgment, held as follows :
"I entirely agree with the views expressed by my WA Nos.215 & 250 of 2009 28 learned Brother Justice G.S.Singhvi. Having regard to the changing judicial approach noticed by His Lordship and if I, may say so, rightly, I may add a few words, I consider it a very important aspect in decision making by this Court.
Judges of the last Court in the largest democracy of the world have a duty and the basic duty is to articulate the Constitutional goal which has found such an eloquent utterance in the Preamble. If we look at our Preamble, which has been recognised, a part of the Constitution in His Holiness Kesavananda Bharati Sripadagalvaru and others v. State of Kerala and another, we can discern that as divided, in three parts. The first part is a declaration whereby people of India adopted and gave to themselves the Constitution. The second part is a resolution whereby people of India solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic. However, the most vital part is the promise and the promise is to secure to all its citizens.
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship;
EQUALITY OF status and of opportunity And to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation"
[See Justice R.C.Lahoti, Preamble-The Spirit and backbone of the Constitution of India, Anundoram Barooah Law Lectures, Seventh Series, Eastern Book Company, 2004, at p.3] Judges and specially the Judges of the highest Court have a vital role to ensure that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the WA Nos.215 & 250 of 2009 29 Preambular promise a reality, they fail to uphold and abide by the Constitution which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this Court.
As early as in 1956, in a Constitution Bench judgment dealing with an Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the Constitution, posed the following question :
"After all, for whose benefit was the Constitution enacted?"
[Bidi Supply Co. v. Union of India and others', at Para 23, pg.487] Having posed the question, the Learned Judge answered the same in his inimitable words and which I may quote:
"I am clear that the Constitution is not for the exclusive benefit of Governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the butcher, the baker and the candlestick maker". It lays down for this land a "rule of law" as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic, Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all."
(Ibid, Emphasis supplied) The essence of our Constitution was also explained by the eminent jurist Palkhivala in the following words :
"Our Constitution is primarily shaped and moulded for the common man. It takes no account of "the portly presence of the potentates, goodly in girth". It is a Constitution not meant for WA Nos.215 & 250 of 2009 30 the ruler, "but the ranker, the tramp of the road. The slave with the sack on his shoulders pricked on with the goad, The man with too weighty a burden, too weary a load."
[N.A.Palkhivala, Our Constitution Defaced and Defiled, MacMillan, 1974, p.29].
I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist.
In this context another aspect is of some relevance and it was pointed out by Justice Hidayatullah, as His Lordship was then, in Naresh Shridhar Mirajkar and others v. State of Maharastra and another. In a minority judgment, His Lordship held that the judiciary is a State within the meaning of Article
12. [See paras 100, 101 at page 28, 29 of the report]. This minority view of His Lordship was endorsed by Justice Mathew in Kesavananda Bharati (supra) [at page 1949, para 1717 of the report] and it was held that the State under Article 12 would include the judiciary.
This was again reiterated by Justice Mathew in the Constitution Bench judgment in the case of State of Kerala and another v. N.M.Thomas and others, where Justice Mathew's view was the majority view, though given separately. At para 89, page 515 of the report, his Lordship held that under Article 12, 'State' would include 'Court'.
In view of such an authoritative pronouncement the definition of State under Article 12 encompass the judiciary and in Kesavananda (supra) it was held that "judicial process" is also State action" [para 1717, pg.1949] That being the legal position under Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the WA Nos.215 & 250 of 2009 31 welfare of the people. Article 38(1) runs as follows :
"The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life".
This is echoing the preambular promise.
Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made clear in Kesavananda Bharati (supra) by Justice Mathew at para 1728, p.1952 and His Lordship held that the Directive Principles nevertheless are :
"...fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience."
In view of such clear enunciation of the legal principles, I am in clear agreement with Brother Justice Singhvi that this Court has a duty to interpret statutes with social welfare- benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above.
Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
WA Nos.215 & 250 of 2009 32
x x x x x x x x x x x x x x x x x x Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in Authorised Officer, Thanjavur and another v. S.Naganatha Ayyar and others, while interpreting the Land Reforms Act, that beneficial construction has to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court, made it very clear that even though the Judges are "constitutional invigilators and statutory interpreters" they should "also be responsive to Part IV of the Constitution being "one of the trinity of the nation's appointed instrumentalities in the transformation of the socio-economic order". The learned Judge made it very clear that when the Judges when "decode social legislation, they must be animated by a goal oriented approach" and the Learned Judge opined, and if I may say so, unerringly, that in this country "the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme" [para 1, p.468] I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so called trends of "Globalization", may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal.
WA Nos.215 & 250 of 2009 33
x x x x x x x x x x x x x x x x x x x x At this critical juncture the Judges' duty, to my mind, is to uphold the constitutional focus on social justice without being in any way mislead by the glitz and glare of globalization." The above views of the learned Judges illumine our path. But, the learned counsel for the management tried to distinguish this decision on facts. But, we think there is no precedent on facts. The principles laid down in the above quoted decision bind us as a precedent. If the view canvassed by the learned counsel is accepted, the decisions of the Apex Court, relied on by the learned Single Judge can be distinguished by saying that none of the cases involved man-handling the near relatives of the management. But, we are not venturing to do that, as we are bound by the principles laid down therein. As noticed earlier, the principle laid down in those decisions is that the Tribunal could interfere with the punishment, if only it is shockingly disproportionate to the gravity of the offence. We are of the opinion that the plausible view taken by the Tribunal that the punishment is grossly disproportionate to the gravity of the offence, cannot be unsettled, invoking the power of this Court WA Nos.215 & 250 of 2009 34 under Article 226 of the Constitution of India, as this Court is not constituted as an Appellate Court under that Article.
In the result, W.A.215 of 2009 is allowed. The judgment under appeal is reversed and the Writ Petition is dismissed. In view of this judgment, we cannot grant the relief sought by the workman for back wages. Therefore, W.A.250 of 2009 is closed. No costs.
K.BALAKRISHNAN NAIR, JUDGE.
P.N.RAVINDRAN, JUDGE.
tgs K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A. Nos.215 & 250 of 2009
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J U D G M E N T Dated 3rd March, 2010.