Madras High Court
Godrej And Boyce Manufacturing Co. ... vs Presiding Officer, Labour Court, ... on 19 September, 1997
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Aggrieved against the award of the Labour Court dated January 17, 1991 made in I.D. No. 85/87, the management has filed W.P. No. 4107 of 1991. Not satisfied with the said award the workman has filed W.P. No. 3071 of 1992. Since both the writ petitions are filed against the same award, I hereby dispose of both the writ petitions by the following common order.
2. The facts leading to the filing of both the writ petitions are briefly stated hereunder :-
For the convenience, I shall refer the management as petitioner and the workman as second respondent in the writ petitions. The petitioner is mainly engaged in the sales and servicing of Typewriters both electronic and manual, Refrigerators, furnitures, security equipments and industrial products, etc. The Second respondent was employed at the Madras Branch as a Typewriter Service Mechanic by the petitioner. The duties of the 2nd respondent mainly consisted of servicing and repairing of typewriters sold by the petitioner. On the basis of four charge memos on various dates, an enquiry was conducted. The workman/2nd respondent participated in the enquiry and he was given sufficient opportunities. The Enquiry Officer submitted his report wherein the 2nd respondent was found guilty of all the charges except that of riotous and disorderly behaviour. Taking into consideration of the charges framed against the 2nd respondent, report of the Enquiry Officer, the 2nd respondent was called on to show cause as to why he should not be dismissed from service in view of serious nature of misconduct. The second respondent submitted his explanation on July 8, 1985 and not satisfied with the same, the petitioner imposed punishment of dismissal from service on the 2nd respondent. The second respondent raised dispute before the Conciliation Officer and the Government of Tamil Nadu by G.O.Ms. No. 3105 dated June 12, 1986 declined to refer the dispute for adjudication before the Labour Court. Thereafter, at the instance of the second respondent, the Government reconsidered the matter for adjudication. The adjudication was taken on the file of Principal Labour Court, Madras as I.D. No. 85 of 1987. The first respondent-Labour Court, Madras, after hearing the case of both parties, passed an order dated January 17, 1991 ordered reinstatement of the second respondent with continuity of service, but without backwages and attendant benefits. The first respondent found that the charges as contained in the charge sheets dated August 21, 1984, January 7, 1985 and March 12, 1985 have been fully proved in the domestic enquiry and came to the conclusion that the findings of the Enquiry Officer in respect of the same cannot be termed as perverse. The first respondent concluded that in respect of the charge sheet dated December 26, 1984 that the charges of threatening superiors, general misbehaviour and acts subversive of discipline have been proved and charges of drunkenness on duty has not been proved. At the same time, the first respondent in his Award, also held that all the few enquiries have been properly conducted and the findings of the Enquiry Officer in respect of the four charge sheets are just and fair. However, the first respondent interfered with the punishment of dismissal on the ground that the 2nd respondent has been recently married and loss of employment would put the entire family to great difficulty and according to him, another opportunity should be given to the second respondent to lead a new life and ordered his reinstatement with continuity of service, but without back wages and attendant benefits. Aggrieved by this order, the management has filed W.P. No. 4107 of 1991. As stated earlier, not satisfied with the Award for the disallowed claim, the workman has filed W.P. No, 3071 of 1992.
3. In the light of the above factual position, I have heard Mr. Sanjay Mohan, learned counsel for the management and Ms. Geetha, learned counsel for the workman.
4. Mr. Sanjay Mohan, learned counsel for the management, submitted that the first respondent has exceeded its jurisdiction in interfering with the punishment under Section 11-A of the Industrial Disputes Act. He contended that the learned judge was mainly under the impression that sympathy would be the sole ground for interference with the punishment. He further submitted that after having found that the grave charges have been proved, yet the learned Judge wrongly felt that misconduct could be viewed very lightly.
He also highlighted that once fraud was pointed out, reinstatement surely could not he the relief if at all any relief was called for. He finally submitted that when the order of the Labour Court is perverse and opposed to the principles laid down under Section 11-A of the Industrial Disputes Act or exceeded its limit, certainly this Court can interfere under Article 226 of the Constitution of India. In support of his contentions, he has relied on the following decision :
1) 1988-I-LLJ-263(SC)
2) 1980-I-LLJ-425 (Mad)
3) 1986-II-LLJ-85 (Mad)
4) Volume 78 F.J.R. 502
5)
6) 1997-I-LLJ 1212 (SC)
7) 1996 2 LLN 627
8) 1997-II-LLJ-833 (Mad)
9) 1991-I-LLJ-372 (Mad)
5. On the other hand, the learned counsel appearing for the workman the submitted that in the light of the evidence available the Labour Court committed an error in rejecting the claim for back wages. According to her, the Labour Court ought to have granted the relief as prayed for. Further, she submitted that inasmuch as the Labour Court has considered the case of the petitioner with regard to the quantum of punishment in terms of Section 11-A of the Industrial Disputes Act, the judicial review by this Court under Article 226 of the Constitution of India is unwarranted. She relied on the following decisions in support of her contentions :
1) 1994 2 LLN 181
2) 1996-I-LLJ-982 (SC)
3) 1997-II-LLJ-111 (Mad)
4) 1997-I-LLJ-698 (Mad)
5) 1990-II-LLJ-468 (Mad)
6) 1996-III-LLJ (Suppl.)-518 (Mad)
7) 1996-II-LLJ-335 (SC)
8) 1984-II-LLJ-10 (SC)
6. It is seen that the workman has not questioned or has no grievance with regard to the domestic enquiry and he has also made endorsement in the industrial dispute before the Labour Court. In such a circumstance, the Labour Court has come to a conclusion that the enquiry was conducted in accordance with law and adequate opportunity was given to the workman.
7. Before considering the impugned order, as contended by both the counsel, it is better to see the charges framed against the workman. The charges are as follows. -
i) Absent without permission during the period from April to June, 1984.
ii) (a) Riotous and disorderly behaviour.
(b) Threatening superiors.
(c) General misbehaviour
(d) Consuming alcohol while on duty
(e) Acts subversive of discipline.
iii) Mis-appropriation of Rs. 30/- collected from one of the customers of the petitioner-management.
iv) Habitual absence without permission and late attendance during the period from July, 1984 to November, 1984.
8. After considering the case of both the management and the workman, the Labour Court came to the conclusion that all the four enquiries were conducted in accordance with law and the reports of the Enquiry Officer were also based on materials. In the light of the above conclusion, I have to ascertain whether the Award of the Labour Court regarding punishment is justified. While awarding reinstatement without back-wages and other attendant benefits with continuity of service the Labour Court has given the following reasons :-
9. Having found that all the charges except the charge with regard to drunkenness and disorderly behaviour proved, I have to see whether the Award of the Labour Court reinstating the Workman is justified or the Labour Court ought to have granted other benefits also along with the order of reinstatement. In the light of the submission made by the learned Counsel for the workman, I have carefully considered the charges levelled against him, the conclusion reached by the Enquiry Officer as well as the order of the Labour Court. I am satisfied that the conclusion reached by the Labour Court with regard to charges levelled against the workman are supported by acceptable evidence and it is not possible for this Court to interfere unless the said findings are proved to be perverse. Since no relevant materials have been placed before me to hold that the finding of the Labour Court with regard to charges against the workman, I am unable to take a different view and necessarily I have to confirm the same.
10. Now the other and only point to be decided is whether in the fact and circumstances of the case and in the light of Section 11-A of the Industrial Disputes Act the Labour Court is justified in passing an Award for reinstatement.
11. First I shall consider the decision referred to by Mr. Sanjay Mohan, learned counsel for the management. Relying on a decision of the Supreme Court reported in C. M. C. Hospital Employees' Union and another v. C. M. C. Vellore Association and others (1988-I-LLJ-263) (supra) the learned counsel submitted that the Award of the Industrial Tribunal or the Labour Court is open to the judicial review by this Court. He has very much relied on the following observation in the said decision at p 274 :
".... As we have already said earlier the decision of the Industrial Tribunal or the Labour Court is open to judicial review by the High Court and by this Court on appeal. Section 11-A which has been introduced since then in the Act which confers the powers on the Industrial Tribunal or the Labour Court to substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management again cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision. The decision of the Industrial Tribunal or the Labour Court is again, as already said, subject to judicial review by the High Court and this Court."
12. In Gopalakrishna Mills Private Limited v. Labour Court (1980-I-LLJ-425) (supra) a Division Bench of this Court has observed thus at pp 431-432 :
"As regards the fifth reason that the second respondent has put in 8 years of service and he is unmarried we are definitely of the view that this is not a proper ground for the Labour Court for interfering with the penalty imposed by the management. When a workman is charged for a serious misconduct as in this case, one cannot go by the number of years of service put in by the workman or by his age or by his married or unmarried status. If an unmarried worker is entitled to seek lenience in the matter of punishment as has been held by the Labour Court, a worker who is married and has children to support is equally entitled to claim leniency. This will lead to a situation that all workman whether married or unmarried can claim leniency. Similarly the number of years of service also cannot be relevant in the matter of imposition of punishment for proved misconduct. If a worker has put in a longer service, he cannot be taken to be licensed to commit misconduct. If leniency were to be thought of on the lines pointed out by the Labour Court it will lead to considerable anomalies. The misconduct committed by a worker who has put in lesser years of service and by another worker who has put in longer years of service are to be treated differently in the matter of punishment with reference to their period of service, it will clearly offend the principle of equality. In fact the tendency on the part of a person who has put in less number of years of service to commit a misconduct will be more when compared with the tendency of a person who has put in longer number of years of service and, therefore, if any invidious distinction is to be made in the matter of punishment, a person who has put in longer period of service should meet with more serious punishment. In our view, leniency can only depend on the nature of the misconduct alleged against the workman and not on the question as to whether the workman is married and whether he has put in a particular period of service."
13. The learned counsel for the petitioner relied on the following decision of this Court reported in Seeralan v. Presiding Officer II and others (1986-II-LLJ-85)(supra) in which the following observation has been given at p 86 :
"Regarding charge of theft, both the Disciplinary Authority and the Tribunal, on a meticulous analysis of evidence on record, have held that the charge had been proved. Once such a finding is rendered, which is an offence punishable under Indian Penal Code, it would be against interests of other workmen and industrial development, if adequate punishments are not imposed when offences under Indian Penal Code are established. He could have been prosecuted. Company having chosen to proceed by a domestic enquiry, based on the Standing Order, this Court considered that there is very little scope for any generosity to be shown or to bring into existence minor punishment for such derelictions. Committing theft had been considered as a penal offence in the interests of society to maintain law and order in the country and to strike out standards, when they occur in industries, would be detrimental to the interests of the nation, if a different approach is made mainly because he is a workman under I.D. Act. Hence, the punishment imposed by the Tribunal, is rather on the concessional side, and the fervent plea putforth by Mr. Devadas, learned counsel for petitioner, to order reinstatement is an unreasonable contention."
14. The Learned counsel for the petitioner very much emphasized the following observation of K. Sukumaran, J. of Kerala High Court reported in Cochin Shipyard Ltd. v. Labour Court Vol. 78 Factories Journal Reports 502 (supra) :-
"Industrial jurisprudence, as distinguished from the traditional one, is essentially propelled by the motivative power of social justice. Social Justice is an integral and inseparable facet of industrial jurisprudence is Social justice, however, does not mean soft justice to a member of the hitherto weaker section of workers. Whatever be the system, discipline is an essential exaction. The worker is equally bound by the basics of discipline, even under ordinary Law. Freedom of the employer had, in later time, been hedged in by very many restrictions imposed by social legislation. The Standing Orders Act has controlled the unbridled action of a mighty, and possibly money-minded, employer. At the same time, disciplinary proceedings for enumerated acts of misconduct have been permitted even under that enactment as against erring employees.
As in crimes, so in acts of misconduct, there are some minor ones. They don't vitally affect the basic existence of the industrial establishment, even if some vibrations, unpalatable and intolerable, are caused. Lighter punishments would suffice for such petty faults. Not so, with acts of misconduct termed as major ones. They can, rudely, even if imperceptibly, destroy the mortar of morale and the foundation work resting on morals and discipline. It is unnecessary to parade the major misdemeanors in an industrial house; theft of employer's property, indubitably, is one.
If every one among the employees feels that he can appropriate what he considers as trivial portions of the employer's property, bleak would be the future of the establishment. As days go by, more anaemic would its conditions be. It is for that reason that theft of a property, even of a comparatively low value, is viewed as a serious misdemeanor. If theft is established as a misconduct, ordinarily, the delinquent should be shown the door. He has to make the exit, if the establishment is to exist. Any decision which virtually would encourage an attitude of callousness towards misconduct involving moral misdemeanor, can work havoc in relation to the morale and morality of an undertaking whose employment potential, direct and indirect, runs to large numbers."
15. In the case of Municipal Committee, Bahadurgarh v. Krishan Behari and others , their Lordships of the Supreme Court have observed that the amount misappropriated may be small or large; it is the act of misappropiation that is relevant. Their Lordship also observed that any sympathy shown in such cases is totally uncalled for and opposed to public interest.
16. In New Shorrock Mills v. Maheshbhai T. Rao (1997-I-LLJ-1212) their Lordships of the Supreme Court have observed thus at p 1214 :
"The Labour Court completely misdirected itself in ordering the respondent's reinstatement with forty percent backwages. The Labour Court was exercising jurisdiction under Section 78 of the Bombay Industrial Relations Act, 1946. It had the Jurisdiction, inter alia, to decide the dispute regarding the propriety and legality of an order passed by an employer acting or purporting to act under the Standing Orders. The Labour Court having come to the conclusion in the case in hand, that the finding of the departmental inquiry was legal and proper, respondent's order of discharge was not by way of victimisation and that the respondent workman has seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded, in the manner it did. This is not a case where the Court could come to the conclusion that the punishment which was awarded was shockingly disproportionate to the employee's conduct and his past record. The Labour Court completely overlooked the fact that even prior to the incident in question the respondent had misconducted himself on several occasions and had been punished. According to the management there were at least three other instances where the respondent had misconducted himself and that he had failed to improve his conduct despite his assurance from time to time. Another aspect which was overlooked by the Labour Court was that on the finding of the Inquiry Officer that the respondent had misbehaved with his superior officer and was guilty of misconduct, the management could have dismissed the respondent from service. The management chose not to do so. Instead it passed an order of discharging the respondent from service. Lesser punishment having been given by the management itself there was no justifiable reason for the Labour Court to have set aside the punishment so awarded. The punishment imposed by the management was not in any way disproportionate to warrant interference by the Labour Court. The direction of the Labour Court ordering reinstatement of the respondent with forty per cent backwages was clearly unwarranted."
17. In the case of Godrej and Boyce Manufacturing Company Ltd., v. Principal Labour Court 1996 (2) L.L.N. 627 (supra) Shivaraj Patil J., in an identical case wherein the petitioner management is also a party has observed in the following manner :
"From the materials on record the charges framed against the second respondent are found proved and established. The reasoning adopted by the Labour Court in interfering with the punishment exercising power under Section 11-A of the Act, in my view, is not acceptable. The discretion exercised by the Labour Court in this regard was not judicious, and the reasons given therefor are untenable and illogical."
18. In Dharnwpuri District Co-op. Sugar Mills v. Labour Court, Vellore (1997-II-LLJ-883) the Division Bench of this Court have expressed thus at p 837 :
"The Court should not entertain a misplaced sympathy towards a workman and should not prejudice the issue from the angle of rehabilitation. The question of rehabilitation and reformation could arise in a case of minor delinquency or misconduct. Where the charges are grave in nature, can the Labour Court exercising power under Sec. 11-A of the Act impose on a management a workman whose presence is likely to affect the morale and discipline of the entire factory. Should the management be embarassed by the reinstatement of such a workman by denying the managerial function to which a management is entitled to, having regard to the facts and circumstances of the case ? The acceptance of such a proportion would only lead to interfering with managerial functions to lane extent of destroying the discipline and control in the entire factory. Section 11-A of the Act is not intended to embarass the management to such extent. The Labour Courts and Tribunals cannot mechanically use the words "the punishment being disproportionate to the charges. "As observed by the Supreme Court of India unless the Labour Court finds the punishment to be highly disproportionate to the charges, the Labour Court should not interfere. Having found the second respondent guilty of the charges, while exercising the function of imposing a punishment, the Labour Court is in fact in the position of management and the sentiments expressed by the management, when they terminated the services of the second respondent have to be kept in mind and different principles will not apply to Labour Court while determining the punishment to be awarded to the guilty worker."
19. In the case of Engine Valves Ltd., v. Labour court, Madras and another (1991-I-LLJ- 372) a Division Bench of this Court with regard to reference of previous record has observed thus at p 379 :
"Reference of previous record in order of punishment constitutes sufficient compliance with requirement of Standing Order."
The Bench further held in the following manner :
"Labour Court or Tribunal should advert to the question of necessity or desirability to interfere with punishment imposed by Management after finding misconduct to have been proved. Labour Court has duty to consider whether punishment is disproportionate or shockingly severe to the charges held proved and specific finding must be recorded whether reinstatement would be expedient and proper or compensation in lieu of reinstatement would meet the ends of justice."
20. The following observation of Justice Janarthanam in a decision reported in Charles v. First Additional Labour Court 1994 2 LLN 181 is very much relied on by the learned counsel for the respondent :
"In the Development of industrial relations norms, we have moved far from the days when the quantum of punishment was considered a managerial function with the Courts, having no power to substitute their own decision in the place as that of the management. In an industrial establishment where there are large number of workers, it is but natural and common for certain occurrences like the one on hand to happen between the management staff and the workers. If such incidents are to taken in a serious way, in the sense that they are likely to impel the industrial atmosphere, and the worker involved should be visited with the serious punishment of dismissal from service, it is to be said that such a measure instead of promoting industrial peace is likely to hamper the cause. It is to be remembered at this juncture the adage, "words will not break bones." Words uttered in a surcharged atmosphere will not mean what they ordinarily intended to convey. Such words used are also referrable to the culture and heritage of the user. The Court does not throw the stress and strain the petitioner had been undergoing at the time when the occurrence took place, but one thing is certain that something could have happened making him lose his balance, which resulted in the volley of abuses being hurled against his superior officer. Though such an act of his cannot at all be appreciated, yet it cannot be stated that he should be dismissed from service, even considering his past misconducts which are after all trivial in nature. He had been undergoing the agony and anguish of being terminated from service and for the past 12 years and during this period, the incident in question could have been wiped out from the memory of everyone and in such circumstances, interest of justice require a much lesser punishment. In this view of the matter, reinstatement of employee without back-wages but continuity of service and other attendant benefits ordered."
Though the learned Judge has upheld the order of reinstatement without backwages but continuity of service as done in our case, it is brought to my notice that a Division Bench of this Court consisting Kanakaraj. J., and Abdul Wahab, J., in writ Appeal No. 711 of 1993 dated July 24, 1997 has reversed the said Judgment. The Division Bench after setting aside the order of the learned Judge and by allowing the Writ Appeal in lieu of reinstatement directed the management in that case to pay a sum of Rs. 75,000/- by way of compensation to the workman. In view of the order of the Division Bench referred to above, the decision of the learned single Judge cannot have any assistance to the respondent's case.
21. The other decision relied on by the learned counsel for the workman is Ram Kishan v. Union of India and Others (1996-I-LLJ-982) (SC) (supra). The following observation of their Lordships has been pressed into service at p 985 :
"It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of the abusive language. No straitjacket formula could be evolved in adjudging whether the abusive language in the given circumstance would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated."
In that case a mere abusive language alone was used by the workman against his superior. Considering the above aspect and after holding that no straitjacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service, instead of modifying (sic) the same to stoppage of two increments with cumulative effect. In view of the grave charges, particularly when the charge relating to misappropriation is proved in our case the conclusion in that decision may not be helpful to the second respondent.
22. The learned counsel for the workman has relied on the following passage in the decision reported in (S. K. Mohiuddin v. The Chairman, T. N. P. S.C., and another (1997-II-LLJ-111) (Mad) (supra) : at p 115 "In our opinion, the appellant appears to be always bullying the officers by casting as persions on them. It appears to us that it has become a regular habit on the part of the appellant to allege something or the other against his superior officers. The appellant always appears to be in a fighting tendency against his superiors who have initiated actions against him, which may perhaps be because of the long drawn battle waged by the respondents against the appellant and the retaliatory attitude on the part of the appellant against the officers of the Commission. The respondents having imposed the punishments of warnings, censure, cut in increments, etc., would have gracefully closed the chapter, but, however, they initialed action against the appellant by issuing a charge sheet asking him to show cause as to why disciplinary action should not be taken against the appellant for using intemperate language while submitting his explanations to the charges framed against him."
After going through the factual position in that case, I am of the view that the same is distinguishable and not applicable to the present case.
23. By contending that without giving an opportunity to the workman the past record of service has been considered while imposing punishment, the learned counsel very much relied on a decision of this Court in The Management of Eswaran and Sons Engineers (P) Ltd., v. III Addl. Labour Court and another (1997-I-LLJ-698) (Mad) (supra).
It is true that in that case, the Division Bench of this Court has expressed that if past records of the workman are to be considered, he must be given an opportunity. In our case, the Labour Court, has taken into consideration not only the past records, but also other various circumstances, viz., family circumstance, likelihood of future reformation etc. In such circumstances, I am of the view that even the said decision is not much helpful to the second respondent-workman.
24. Relying on a decision reported in The Management of TAFE v. R. Venkataraman and other, (1990-II-LLJ-468) (Mad), the learned counsel for the workman contended that the power of review under Article 226 of the Constitution of India by this Court against the order of the Labour Court in the teeth of Section 11-A of the Industrial Disputes Act is very limited. No doubt, the Division Bench in the said decision has observed thus at p 469 :
"The well accepted principle on the question of exercise of powers under Section 11-A of the Industrial Disputes Act, 1947, hereinafter referred to as the Act, to evaluate the gravity of misconduct for the purpose of the punishment to be imposed on a workman is, that once that power has been exercised, this Court under Article 226 of the Constitution of India, in the absence of any important legal principle, should not undertake to re-examine the question of adequacy or inadequacy of the materials for interference by Labour Courts."
However, even at the outset, I have referred to the decision of the Apex Court reported in (1988-I-LLJ-263), wherein their Lordships of, the Supreme Court have observed that the power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. I have also extracted the reason given by the Labour Court while interfering with the punishment imposed by the management. In the light of several decisions referred to above, I am of the view that the reasons given by the Labour Court are irrelevant, immaterial and cannot be termed as sufficient reasons in order to modify the punishment.
25. Relying on a decision reported in N. Mohandas v. S. I. Polymers (P) Ltd., (1996-III-LLJ-(Suppl.)-518) (Mad) (supra), the learned counsel for the workman raised the very same objection with regard to interference by this Court in a matter like this. The reasons given by me for the decision reported in (1990-II-LLJ-468) cited supra are equally applieable to this case also. In the case before the Division Bench, viz., (1996-III-LLJ (Suppl.)-518) (Mad) (supra) the learned Judges have found that the Labour Court has meticulously and at great detail analysed the question of quantum of punishment and specifically recorded its finding about the gravity of the charges held proved and also the recalcitrant and incorrigible attitude, as evidenced by the past history of service of the appellant, as reflected from the materials available on record and held that the punishment imposed upon the appellant cannot said to be disproportionate to the charges held proved. In such circumstances, the order of the Labour Court has been confirmed by the learned single Judge as well as the Division Bench. I have already demonstrated that the reasons given by the Labour Court for modifying the punishment imposed by the management are unacceptable.
26. The learned counsel for the workman has relied on the following passage in Palghat B. P. L. and P. S. P. T. U. v. B. P. L. India Ltd., and another (1996-II-LLJ-335) (SC) at p 337 :
"... The Labour Court had discretion under Section 11-A of the Industrial Disputes Act to consider the quantum of misconduct and the punishment. In view of the surging circumstances, viz., the workmen were agitating by their collective bargain for acceptance of their demands and when the strike was on, the settlement during the conciliation proceedings, though initially agreed to, was raised later on. They appear to have attacked the officers when they were going to the Factory. Under these circumstances, the Labour Court was well justified in taking lenient view and in setting aside the order of dismissal and giving direction to reinstate the workmen with a cut of 75% of the backwages upto the date of the award. In our considered view, the discretion exercised by the Labour Court is proper and justified in the above facts and circumstances. The High Court had not adverted to these aspects of the matter. It merely had gone into the question whether the act complained of is a misconduct."
The factual position as found in the above passage is with regard to taking of lenient view and that was the reason for making such observation by their Lordships of the Supreme Court.
Hence the said decision is distinguishable and not applicable to our case.
27. Finally the learned counsel for the workman, while relying on a decision reported in Jitendra Singh v. Shri Baidyanath Ayurved Bhawan Ltd., (1984-II-LLJ-10) (SC)(supra), submitted that this Court is not entitled to interfere with the Award of the Tribunal lightly which exercised power under Section 11-A of the Industrial Disputes Act. There is no dispute with regard to the above proposition of law. I have already demonstrated that even by mere cursory perusal of the reason given by the Labour Court for modification of the punishment shows that it has not exercised its power judicially. Already I have pointed out that the decision of the Industrial Tribunal and the Labour Court is subject to judicial review by this Court (vide the decision of the Supreme Court reported in (1988-I-LLJ-263) (supra).
28. As pointed out by the Apex Court in the decision (1988-I-LLJ-263)(supra) this Court is competent to review the Order of the Labour Court and Tribunal. Section 11-A of the Industrial Disputes Act which has been introduced then into the Act which confers power on the Industrial Tribunal and Labour Court to substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management cannot be considered as conferring an arbitrary power. However the same has to be exercised judicially and they have to interfere only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. They must give proper and acceptable reasons and the same are subject to judicial review by this Court as well as the Apex Court. The Labour Court itself has come to the conclusion that the charge against the petitioner made on January 7, 1985 as per M.M. 21 is not a simple one, on the other hand, it is a serious one. The Labour Court has considered that the workman is a married person and he is out of employment for 4 1/2 years and if he is not reinstated, his family would suffer. It also mentioned that the management must give one opportunity to reform himself. As a matter of fact, all these reasons are (not sic.) germane for consideration. Further, the Labour Court has proceeded mainly on the ground of sympathy for modifying the punishment of dismissal into reinstatement without backwages. I have already demonstrated the decision of the Division Bench of this Court in (1997-II-LLI-833)(Mad) (supra) wherein their Lordships have held that the Court should not entertain a misplaced sympathy towards a workman and should not prejudice the issue from the angle of rehabilitation and that the question of rehabilitation and reformation could arise in a case of minor delinquency or misconduct. Absence for a longer period may be a minor delinquency. Apart from the above charge, the workman was found proved of charges regarding misappropriation and cheating. Those charges are grave in nature. In such a circumstance, I am of the view that the conclusion and the ultimate direction issued by the Division Bench in the said decision are directly applicable to our case.
29. In the light of the factual position as discussed and on the basis of the various decisions referred to above, I am of the view that the reasons given by the Labour Court in modifying the punishment of dismissal into reinstatement without backwages and continuity of service cannot be sustained. I am also of the view that the punishment imposed on the workman by the management is proportionate to the degree of guilt of the workman. I am also satisfied that the reasons given by the Labour Court in modifying the punishment are unacceptable. Accordingly, the Award of the Labour Court dated January 17, 1991 made in I.D. No. 85/87 on the file of the first respondent is quashed. However, the petitioner - management is directed to pay a sum of Rs. 30.000/ (Thirty Thousand) by way of Demand Draft in favour of the workman within a period of four weeks as compensation. Payment already made under Sec. 17-B shall not be recovered from the workman. Net result, W.P. No. 4107 of 1991 is allowed and W.P. No. 3071 of 1992 is dismissed. However there will be no order as to costs in both the writ petitions.