Madras High Court
M. Rajakumar vs The Presiding Officer on 21 July, 2008
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 41539 of 2005 M. Rajakumar .. Petitioner Vs. 1. The Presiding Officer First Additional Labour Court Chennai 2. The Chairman National Institute of Technical Teachers Training Research Chennai Society Tharamani Chennai 3. The Director and Member Secretary National Institute of Technical Teachers Training Research Chennai Society Tharamani Chennai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus to call for the records from the first respondent pertaining to the award dated 09.9.2004 made in I.D. No. 18 of 2004 and the order of removal of his service passed by the third respondent vide No. E1/DP/2002-2003/3686 dated 25.02.2003 and quash the same and consequently direct the respondents 2 and 3 to reinstate him service with full backwages and all attendant benefits including promotion. For Petitioner : Mr. S.S. Vasudevan For Respondent 2 : Mr. S. Saiprasad for M/s Sai Raj Associates ORDER
Aggrieved by the Award dated 09.9.2004 and made in I.D. No. 18 of 2004, the petitioner has filed the present writ petition wherein and by which the first respondent Labour Court declined to grant any relief to him. Curiously, in the very same writ petition, the petitioner wanted to challenge the order dated 25.02.2003 passed by the second respondent by which he was removed from service. When passing the order dated 25.02.2003, the second respondent exercised power under Rule 19(ii) of the CCS (CCA) Rules and held that it was reasonably not practicable to hold an enquiry against the petitioner and hence, the conducting of an enquiry was dispensed with and he was removed from service.
2. The petitioner was appointed in the second respondent National Institute of Technical Teacher Training Institute [for short, 'Institute'] on 30.4.1986 as a Technician Grade III. He organised a trade union for the non-teaching staff and became its President on 09.7.1993. On 01.6.1995, he was promoted as a Technician Grade II. According to the petitioner, during October 1995, the Chairman and the Director of the Institute started patronising a rival association by instigating the Management staff of the Institute. It transpires that the third respondent became the Director of the Institute on 11.7.2001. On 26.9.2001, one G. Natarajan, an Office Superintendent complained that certain abusive and provocative statements were written in the Notice Board of the petitioner's Union. Another Assistant, by name, Selvam, also complained that the petitioner had misbehaved with him and other staff members and used abusive language and threatened them with dire consequences.
3. On 13.02.2002, the very same Selvam complained that derogatory statements were written in the Notice Board of the petitioner's Union spoiling his image and reputation. On 13.02.2002, the Principal of the Institute called the petitioner to inquire into the complaint given by Selvam. It was stated that the petitioner instead of answering the complaint, exhibited unruly behaviour and persisted that he would continue to make such writings in future also. When he was orally warned, he walked out of the room uttering abusive language.
4. On 14.02.2002, he was given a charge memorandum based upon the complaint given by Selvam. He was also suspended on the same day. The petitioner questioned the authority of the Principal in initiating a disciplinary action and suspending him. He sent an appeal to the Chairman and Board of Directors, viz., second respondent and they rejected his appeal on 11.3.2002.
5. On 07.5.2002, the Accounts Officer, by name, Balaiyan, was appointed as the Presenting Officer. When the Enquiry Officer sent enquiry notice, the petitioner sought for the assistance of a lawyer. On 10.7.2002, a preliminary enquiry was conducted which was adjourned. The petitioner was informed that he cannot engage a lawyer but can have the assistance of another co-employee in terms of Rule 14 of the Rules applicable to the Institute. The petitioner did not furnish the name of the defence assistant and continue to prolong the enquiry which was postponed more than once. On 22.10.2002, once again, the Institute received a complaint from one Mani, watchman, stating that he was abused with filthy words and he was also assaulted. On 22.10.2002, when the enquiry was adjourned to 29.10.2002, he insisted that the enquiry should continue on that day itself. Thereafter, the petitioner was directed to go to the office of the Principal in-charge.
6. Another memorandum of charges was given to the petitioner on 12.11.2002 containing three charges. Again, on 02.7.2002, the Institute received a complaint from Natarajan, Office Superintendent, who was the original complainant by stating that he was abused and an attempt was made to assault him. Once again, another charge memorandum dated 03.7.2002 was given to the petitioner asking him as to why the quarters allotted to him should not be vacated. On 11.7.2002, the petitioner denied the incident.
7. He filed two writ petitions being W.P. No. 35199 of 2002 challenging the notice asking him to vacate the quarters and W.P. No. 35200 of 2002 challenging the suspension made against him pending enquiry.
8. Another memorandum dated 23.7.2002 was given to the petitioner about his conduct on 02.7.2002. One P.Sivakumar, an Assistant Professor was appointed as an Enquiry Officer to enquire into the second charge-sheet. On 10.01.2003, the Institute received a letter from Venkatasubramaniam that he cannot function as an Enquiry Officer. The very same Sivakumar, Assistant Professor was appointed as Enquiry Officer in respect of the three charge-sheets dated 14.2.2002, 23.7.2002 and 12.11.2002 and Accountant Balaiyan was appointed as the Presenting Officer. It was also resolved to videograph the entire enquiry proceedings.
9. On 21.3.2002, the enquiry commenced and was adjourned to 04.02.2003. On that day, around 12 Noon, it was postponed after lunch. After the videograph was switched off, the Enquiry Officer was in his room along with the Stenographer. The petitioner appeared to have entered and punched the Enquiry Officer in his stomach and at his back. He was also threatened to kill him if he proceeded with the enquiry. He also took out a knife by shouting that he will be out on that day. One production Assistant, by name, Radhakrishnan, who was present, saved the Enquiry Officer from further assault. The Enquiry Officer Sivakumar giving a police complaint on the same day and he was subsequently sent to the hospital for treatment. It is found entered in the Accident Register that he was assaulted by a known person with hand around 12 Noon. The Government Hospital, Saidapet treated the petitioner as an out-patient. On the basis of the complaint given by the Enquiry Officer, the petitioner was arrested and sent to judicial custody on 04.02.2003.
10. Taking note of the conduct of the petitioner and the prevailing tense atmosphere in the Institute, the respondents dispensed with the enquiry as it was not reasonably practicable to hold the same and dismissed the petitioner from service in terms of Rule 19(ii) of the CCS (CCA) Rules by an order dated 25.02.2003. In the said order, the misconducts committed by the petitioner were listed out. The misconduct committed on 04.02.2003 became the focal point to come to the conclusion that any further enquiry will be impracticable. The written complaints made against the petitioner became materials on which the respondents came to the conclusion that charges have been proved and since the respondent Institute being an educational institution and the petitioner had scant regard for any discipline as he had exhibited contempt to his superiors and colleagues, it was thought that removal from service would be proper punishment. The petitioner filed a writ petition being W.P. No. 7510 of 2003 challenging the order of removal.
11. However, the petitioner by then, had also approached the Labour Department raising an industrial dispute under Section 2A(2) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act']. On account of the failure report, he filed a claim statement before the first respondent Labour Court which took up the dispute as I.D. No. 18 of 2004. In the light of the industrial dispute pending before the Labour Court, he withdrew the writ petition as well as the earlier writ petitions and this Court permitted the withdrawal vide order dated 26.02.2004.
12. Before the Labour Court, no enquiry was held and the parties were allowed to lead evidence on the merits of the allegations. On the side of the petitioner, 5 witnesses, viz., W.W.1 to W.W.5, were examined. He had filed 47 documents which were marked as Exs. W.1 to W.47. On the side of the Management, 11 witnesses were examined as M.W.1 to M.W.11 and 47 documents were filed and were marked as Exs. M.1 to M.47. The Labour Court framed 5 points for its determination.
13. With reference to the first point which related to the charges levelled against the petitioner vide charge memorandums dated 14.02.2002, 23.7.2002 and 12.11.2002, it was found proved by the respondents. The Labour Court, after an analysis of the materials, came to the conclusion that excepting for the second charge in charge-sheet No. 2 (Ex. M.5), all other charges were proved against him. It also held that the circumstances that prevailed on 04.02.2003 justified the Institute from dispensing with the enquiry. With reference to the second point, it held that since the misconduct committed by the workman was so grievous, it does not deserve any sympathy and, therefore, it declined to grant any relief. On an incidental issue raised whether the Management was guilty of committing any 'unfair labour practice', the Labour Court held that there was no unfair labour practice committed by the Management. His claim for compensation for Rs.5 lakhs for the alleged illegalities committed by the respondent, the Labour Court refused to grant any such relief. Therefore, by its Award dated 09.9.2004, the Labour Court dismissed the reference brought in by the petitioner. It is against this Award, the present writ petition has been filed as noted above.
14. Mr. S.S. Vasudevan, learned counsel appearing for the petitioner contended that the Award of the Labour Court justifying the dispensation of the enquiry was illegal and improper and, therefore, he wanted to challenge even the original order dated 25.02.2003. Once if this Court holds that dispensation of the enquiry was not proper, then the matter will have to be remitted back to the authorities. Since the Principal of the Institute, who became the disciplinary authority, was biased against the petitioner and his Union, he is entitled to have an adhoc disciplinary authority appointed as per the CCS (CCA) Rules and then a fresh enquiry will have to be conducted. If this stand of the petitioner is accepted, then there is no necessity to go into the merits of the other issues decided by the Labour Court. He wanted to address arguments as to how the order passed by the respondents under Rule 19(ii) of the Rules was improper.
15. This argument of Mr. S.S. Vasudevan, learned counsel for the petitioner, overlooks the object of industrial adjudication and the subsequent change of law brought about by the introduction of Section 11A of the I.D. Act. After the introduction of Section 11A of the I.D. Act, both the defective enquiry conducted by the employer and the dismissal without enquiry are treated equally and the Labour Court has now been empowered to go into the entire issue on the basis of the pleadings and evidence let in by the parties before the Labour Court.
16. The Supreme Court in Engineering Laghu Udyog Employees' Union v. Judge, Labour Court and Industrial Tribunal [(2003) 12 SCC 1] observed in paragraph 14 as follows:-
Para 15: "We may, however, observe that although in certain contingencies an employer may in a case of grave nature of misconduct dismiss a workman without holding an enquiry but ordinarily such an enquiry will not be dispensed with. In the event it is found ultimately by the Labour Court/Industrial Tribunal that the employer had taken recourse to unfair labour practice or the order of termination has been passed mala fide or by way of victimisation, it will be open to the Tribunal to direct payment of compensation even in a case where ultimately charges are proved, despite holding that the order of termination is valid for the reason that the principles of natural justice have not been complied with."
17. In this context, the Supreme Court reviewed the judgments rendered earlier regarding the scope of Section 11-A of the I.D. Act in relation to defective enquiry and no enquiry vide its recent decision in Union Bank of India v. Tamil Nadu Banks Deposit Collectors Union and another [2008 AIR SCW 642]. It was observed in paragraphs 8 to 10 as follows:-
Para 8: "In Workmen of Motipur Sugar Factory (Private) Limited v. Motipur Sugar Factory [(1965) 3 SCR 588] it was observed as follows:
"It is now well-settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held (see Indian Iron & Steel Co. v. Their workmen [[1958] S.C.R. 667] but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s Sasa Musa Sugar Works (P) Limited v. Shobrati Khan [[1959] Supp. S.C.R. 836], Phulbari Tea Estate v. Its Workmen and Punjab National Bank Limited v. Its Workmen. There three cases were further considered by this court in Bharat Sugar Mills Limited. v. Shri Jai Singh, and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha v. Belaund Sugar Co. [[1954] L.A.C. 697]. It was pointed out that "the import effect of commission to hold an enquiry was merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out". It is true that three of these cases, except Phulbari Tea Estate's case were on applications under Section 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's was on a reference under s. 10, and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.
Para 9: Again in Delhi Cloth and General Mills Co.Vs. Ludh Budh Singh [1973(3) SCR 29] this Court held as follows:
"When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But. if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby as the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct."
Para 10: In Workmen of Fire Stone Tyre Rubber Company v. Management [1973(1)LLJ 78] it was inter alia held as follows:
"4. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimization."
18. In the light of the above binding legal precedents, the argument addressed by the learned counsel for the petitioner is contrary to law and cannot be allowed to be raised. Unlike the High Court dispensing justice under Article 226 of the Constitution, the issue cannot be decided merely rendering a finding on the question of dispensation of enquiry made by the original order of removal, since the Labour Court now been empowered to adjudicate an industrial dispute, has the plenary power of deciding the entire matter so as to give quietus to the dispute. It has allowed parties to lead evidence and rendered a finding on the merits of the allegations made against the petitioner. The issue relating to the validity or otherwise of the order dated 25.02.2003 had lost its relevance. Therefore, the second prayer of the petitioner cannot be countenanced.
19. With reference to the merits of the dispute, the three contentions raised by the petitioner were as follows:-
(i) Bias on the part of the witnesses examined on the side of the Management since they belonged to rival association and they are Management staff, viz., they are teachers.
(ii) Regarding the incident relating to 02.7.2002, the petitioner was out of station and the evidence let in, in this context, were wrongly rejected by the Labour Court.
(iii) With reference to the assault on the Assistant Professor Sivakumar (appointed as Enquiry Officer), that issue never formed part of the charge-sheet and he was not given an opportunity to defend himself and the attempt to summon the videograph was rejected by the Management and the Labour Court.
20. Taking the third contention as the first contention, it must be stated that in the present case, the enquiry itself was dispensed with after the assault made against the Enquiry Officer, who is an Assistant Professor of the Institute. Once the entire issue relating to charges levelled against the petitioner is before the Labour Court, it can allow parties to lead evidence. In fact, as noted above in the decision of the Supreme Court that even after the enquiry is complete on specific acts of misconduct, the Management is allowed to let in additional evidence in respect of any other subsequent events. But in the present case, the issue of assault on Sivakumar was not a subsequent event but it formed part of the removal order itself. In effect, along with the three charge-sheets, the order of removal also formed part of the basic material on which evidence can be let in and the order of removal clearly mentions about the incident on 04.02.2003 leading to the removal of the petitioner.
21. The summoning of the Videograph may not be relevant because admittedly, the incident had taken place after the videograph was switched of and, therefore, no useful purpose will be served by summoning the said videograph. Hence, the third contention will stand rejected.
22. With reference to the finding of the Labour Court, it must be stated that there is an overwhelming evidence against the petitioner in respect of the proved charges. Even his defence that he was away from the station from 2nd to 4th of July 2002 was disbelieved by the Labour Court since there was concrete evidence about the petitioner's presence in the station. The alibi pleaded by him was found not acceptable.
23. The learned counsel for the respondent also brought to the notice of this Court the endorsement made by the petitioner in the minutes of the enquiry dated 28.01.2003 to show that he had received the copies of the minutes on 04.02.2003 by making an endorsement in Tamil which, if translated, will read as follows:-
"Today on 04.02.2003 at 10.45 am, I am receiving the same with objections.
Sd.
M. Rajkumar (Charged Official 04.02.2003.)"
This will falsify his plea that alibi that he was away from station from 2nd to 4th of July 2002. Hence, the said contention raised by the petitioner must necessarily fail.
24. With reference to the charge that the witnesses were all either Management staff or members of the rival association, it must be stated that nothing turns out of such allegations.
25. The Supreme Court in M/s Bharat Iron Works v. Bhagubhai Balubhai Patel and others [1976 (1) SCC 518] held that in case of charge of victimisation, it must be properly and adequately pleaded and proved as it is a serious charge made against the Management. The following passages found in paragraphs 10 and 11 and a portion of paragraph 12 may be usefully extracted:-
Para 10: A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. Collective bargaining being the order of the day in a democratic social welfare State, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual cooperation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues.
Para 11: The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.
Para 12: .... The question to be asked is: Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer? To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent upon raising of certain demands by the union, each party calling the other highly unreasonable or even provocative, the tribunal will not readily accept a plea of victimisation as answer to a gross misconduct even when an employee, be he an active office-bearer of the union, commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence will fall flat...."
26. Therefore, the mere fact that certain witnesses were members of the rival association or that some of them are Management staff cannot by itself be a ground to reject their evidence. In the present case, the witnesses were before the Labour Court and have deposed on oath and have filed sworn affidavits. They were also put to extensive cross-examination made by the counsel for the petitioner. Therefore, the evidence recorded before the Labour Court, which is a judicial forum, cannot be brushed aside merely on grounds of bias or union rivalry. In fact, leaving aside the other charges, the assault against the Assistant Professor Sivakumar, who was only functioning as Enquiry Officer, can never be condoned by any Court. The said Sivakumar was examined as P.W.10. In paragraphs 11 to 14 of the affidavit filed before the Labour Court, he had narrated the events regarding the assault made by the petitioner. In cross-examination he had elaborated the said incident and withstood the cross-examination. In support of his charge, he had also produced following Exhibits:-
(a) Ex. M.38 Extract copy of the Accident Register and Medical Report
(b) Ex. M.39 Copy of the Police complaint given by him.
(c) Ex.M.45 Letter sent by J-7 Velacherry Police Station regarding the arrest of the petitioner.
27. All these facts were not created just to implicate the petitioner. Therefore, the allegation that the witnesses belonged to rival association or Management staff cannot be a ground to impeach the testimony tendered by them and accepted by the Labour Court. Therefore, the charge that the petitioner was victimised by the Management cannot be accepted.
28. In fact, in the Bharat Iron Works (cited supra), the Supreme Court had very clearly stated that a proved misconduct is anti-thesis of victimisation as understood in industrial jurisprudence. This will reject the first contention raised by the petitioner.
29. With reference to the penalty, the Labour Court has correctly held that the petitioner is not liable for any relief considering the gravity of charges levelled against the petitioner. The Labour Court had gone to the extent of saying that the petitioner is not worthy of being retained in the institution.
30. In this context, the learned counsel for the respondent relied upon the judgment of the Supreme Court in Hombe Gowda Educational Trust v. State of Karnataka [2006 (1) SCC 430] in which all the previous decisions of the Supreme Court were referred to with approval. The following passages found in paragraphs 19 to 25 may be usefully extracted:-
Para 19: "Assaulting a superior at a workplace amounts to an act of gross indiscipline. The respondent is a teacher. Even under grave provocation a teacher is not expected to abuse the head of the institution in a filthy language and assault him with a chappal. Punishment of dismissal from services, therefore, cannot be said to be wholly disproportionate so as to shock ones conscience.
Para 20: A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matters, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforementioned principles in view, we may hereinafter notice a few recent decisions of this Court.
Para 21: In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh1 this Court held: (SCC pp. 212-13, para 29) 29. This leaves us to consider whether the punishment of dismissal awarded to the workmen concerned dehors the allegation of extortion is disproportionate to the misconduct proved against them. From the evidence proved, we find the workmen concerned entered the Estate armed with deadly weapons with a view to gherao the manager and others, in that process they caused damage to the property of the Estate and wrongfully confined the manager and others from 8.30 p.m. on 12th of October to 3 a.m. on the next day. These charges, in our opinion, are grave enough to attract the punishment of dismissal even without the aid of the allegation of extortion. The fact that the management entered into settlement with some of the workmen who were also found guilty of the charge would not, in any manner, reduce the gravity of the misconduct in regard to the workmen concerned in this appeal because these workmen did not agree with the settlement to which others agreed, instead chose to question the punishment. Para 22: Yet again in Muriadih Colliery v. Bihar Colliery Kamgar Union the law has been laid down in the following terms: (SCC p. 335, para 13) 13. It is well-established principle in law that in a given circumstance it is open to the Industrial Tribunal acting under Section 11-A of the Industrial Disputes Act, 1947 has the jurisdiction to interfere with the punishment awarded in the domestic inquiry for good and valid reasons. If the Tribunal decides to interfere with such punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. In the instant case it is the finding of the Tribunal which is not disturbed by the writ courts that the two workmen involved in this appeal along with the others formed themselves into an unlawful assembly, armed with deadly weapons, went to the office of the General Manager and assaulted him and his colleagues causing them injuries. The injuries suffered by the General Manager were caused by lathi on the head. The fact that the victim did not die is not a mitigating circumstance to reduce the sentence of dismissal. (See also Mahindra and Mahindra Ltd. v. N.B. Narawade.) Para 23: In V. Ramana v. A.P. SRTC4 relying upon a large number of decisions, this Court opined: (SCC p. 348, paras 11-12) 11. The common thread running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed. Para 24: In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate it was held: (SCC p. 499, paras 30-32) 30. Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four corners thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other.
31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground.
32. In Regional Manager, Rajasthan SRTC v. Sohan Lal it has been held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein. In the facts and circumstances of the case and having regard to the past conduct of the respondent as also his conduct during the domestic enquiry proceedings, we cannot say that the quantum of punishment imposed upon the respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary. Para 25: In M.P. Electricity Board v. Jagdish Chandra Sharma this Court held: (SCC p. 408, para 9) 9. In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the workplace, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organisation. Discipline at the workplace in an organisation like the employer herein, is the sine qua non for the efficient working of the organisation. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have already referred to the views of this Court. To quote Jack Chan, discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large.
Obviously this idea is more relevant in considering the working of an organisation like the employer herein or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of ones natural rights. It is essential for the prosperity of the organisation as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion.
31. Even with reference to the jurisdiction of the High Court in interfering with the discretion exercised by the Labour Court under Section 11A of the I.D. Act, the same judgment also dealt with the issue in paragraphs 29 to 31 which may also be usefully reproduced:-
Para 29: "Indiscipline in an educational institution should not be tolerated. Only because the Principal of the institution had not been proceeded against, the same by itself cannot be a ground for not exercising the discretionary jurisdiction by us. It may or may not be that the management was selectively vindictive but no management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils.
Para 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.
Para 31: In Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engg. Works (P) Ltd. it was held: (SCC p. 463, para 32)
32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily have the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. (See also Ajay Kumar Bhuyan v. State of Orissa.)
32. In the light of the above, the writ petition is misconceived and devoid of merits. There are no irregularities or illegalities committed by the Labour Court in passing the impugned Award. Accordingly, the writ petition is dismissed. However, there will be no order as to costs.
gri To
1. The Presiding Officer First Additional Labour Court Chennai
2. The Chairman National Institute of Technical Teachers Training Research Chennai Society Tharamani Chennai
3. The Director and Member Secretary National Institute of Technical Teachers Training Research Chennai Society Tharamani Chennai