@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashHeard the arguments of the learned Counsel for the parties and have perused the records.
2. The Management, aggrieved by the Award dated 26.8.2002 passed by the first respondent Labour Court in I.D. No. 1030 of 1991 in granting
reinstatement with 75% of the backwages, has filed W.P. No. 42507 of 2002.
3. The petitioner in W.P. No. 14751 of 2007 is the workman challenging the Award of the first respondent Labour Court dated 26.8.2002 made
in I.D. No. 1030 of 1991 insofar as it denied 25% of the backwages while granting the relief of reinstatement.
4. Pending the writ petition, this Court granted the relief to the workman u/s 17B of the Industrial Disputes Act, 1947 [for short, ''I.D. Act''] by an
order dated 18.8.2003 by which the petitioner was paid every month Rs. 2030/- from the date of the Award till the date of disposal of the writ
petition. The petitioner had reached the age of superannuation on 03.01.2004. By way of interim relief, the petitioner had already been paid Rs.
2,42,000/- and in terms of Section 17B of the I.D. Act, he had also so far received Rs. 1,54,450/-. The remaining backwages after deducting the
said amount comes to Rs. 3,03,000/- which has been directed to be deposited in the Indian Bank Extension Counter, High Court by the Labour
Court under the reinvestment scheme. Thereafter, when the workman claimed interest, that has also been directed to be withdrawn vide order
dated 18.02.2004.
5. It was after getting these amounts and after reaching the age of superannuation, the workman had decided to file a cross writ petition being W.P.
No. 14751 of 2007 challenging that portion of the Award which denied 25% of the backwages to the workman. That writ petition was admitted
on 23.4.2007 and directed to be posted along with the previous writ petition.
6. In view of the interconnectivity between these two writ petitions, the matters were heard together and a common order is being passed.
7. At the outset, it must be stated that there is no justification for entertaining the workman''s writ petition at this stage as it was filed after a period
of five years from the date of the Award. During this period, the petitioner was in receipt of lump sum amount towards monthly wages u/s 17B of
the I.D. Act as well as withdrawal of periodical interest. He had also reached the age of superannuation on 03.01.2004. Therefore, nothing
prevented the workman to file his writ petition at an earlier point of time.
8. However, Mr. Arulraj, learned Counsel appearing for the workman contended that since the writ petition filed by the Management is pending,
the Court can hear the cross writ petition filed by the workman without regard to the delay factor. This Court is unable to accept the said plea.
9. The Supreme Court in its judgment in U.P.S.R.T.C. Vs. Mitthu Singh, referred to several earlier decisions of the Supreme Court on this issue
and considered the issue relating to payment of backwages in the event of the Labour Court coming to the conclusion about the termination of the
services of the workman being found unjustified. It is relevant to refer to Paragraphs 13 to 16 of the said judgment which is reproduced below:
Para 13: In G.M., Haryana Roadways v. Rudhan Singh this Court held that there is no rule of thumb that in each and every case, where a finding is
recorded by a court or tribunal that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors
must be taken into account. The Court stated: (SCC p. 596, para 8)
8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section
25F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether
after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc,
short-term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and
balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length
of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are
wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him
he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the
award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite
large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A
regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a
calendar year.
Para 14: Again, in Allahabad Jal Sansthan v. Daya Shankar Rai after considering the relevant cases on the point, the Court stated: (SCC p. 130,
para 16)
16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement
with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the
workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman
is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic
approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.
Para 15: Recently, in U.P. SRTC Ltd. v. Sarada Prasad Misra one of us (C.K. Thakker, J.) had an occasion to consider a similar issue. Referring
to the earlier case-law, it was observed: (SCC p. 739, para 16)
16. From the above cases, it is clear that no precise formula can be adopted nor ''cast-iron rule'' can be laid down as to when payment of full back
wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/ tribunal
should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the
contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in
accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages
would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the
court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good
conscience, should pass an appropriate order.
Para 16: Thus, entitlement of a workman to get reinstatement does not necessarily result in payment of back wages which would be independent of
reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equity and good conscience have to be
kept in view by an appropriate court/tribunal.
10. In the light of the above legal precedents as well as the Labour Court, having found the workman guilty of rash behaviour, denied 25%
backwages, this Court is not inclined to entertain the writ petition filed by the workman. Accordingly, W.P. No. 14751 of 2007 is liable to be
dismissed.
11. Mr. Karthick, learned Counsel appearing for the Management submitted that the Labour Court found that the domestic enquiry conducted by
the Management was just, fair and proper and it is in accordance with the principles of natural justice. The only issue to be considered is whether
the Labour Court was entitled to reappreciate the evidence and come to a different conclusion.
12. In this context, the learned Counsel relied upon the judgment of the Supreme Court in Divisional Controller, KSRTC (NWKRTC) Vs. A.T.
Mane, and particularly emphasized the following passage found in paragraph 9 which reads as follows:
Para 9: From the above it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the
Appellate Tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case,
there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that
evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to
reject the said finding which, in our opinion, as held by this Court in the case of Rattan Singh is not a condition precedent. We may herein note that
the judgment of this Court in Rattan Singh has since been followed by this Court in Devendra Swamy v. Karnataka SRTC.
13. He further relied upon the judgment of the Supreme Court in Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, and emphasized the
passage found in paragraph 20 of the judgment which is as follows:
Para 20: Once a domestic tribunal based on evidence comes to a particular conclusion normally it is not open to the tribunal and the courts to
substitute their subjective opinion in place of the one arrived at by the domestic tribunal.
14. He also submitted that the scope of interference with the Award of the Labour Court in exercising jurisdiction under Article 226 of the
Constitution of India though may be limited, but when an error of fact, it can also be a subject matter of judicial review.
15. In this context, he referred to the judgment of the Supreme Court in Cholan Roadways Limited Vs. G. Thirugnanasambandam, . The learned
Counsel placed reliance upon paragraphs 34 and 35 of the said judgment which may be usefully extracted below:
Para 34: This decision also has no application to the facts of the present case. In the instant case, the Presiding Officer, Industrial Tribunal as also
the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves
correct questions. It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of
fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was
apparent insofar as it did not apply the principle of res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into
consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, that the
passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in
relation to a domestic enquiry, which is ''preponderance of probability'' and applied the standard of proof required for a criminal trial. A case for
judicial review was, thus, clearly made out.
Para 35: Errors of fact can also be a subject-matter of judicial review. (See E. v. Secy. of State for the Home Deptt.) Reference in this connection
may also be made to an interesting article by Paul P. Craig, Q.C. titled ''Judicial Review, Appeal and Factual Error'' published in 2004 Public Law,
p. 788.
16. The learned Counsel also submitted that the Supreme Court has consistently deprecated the practice of the Labour Court interfering with the
quantum of punishment while exercising power u/s 11A of the I.D. Act even in cases where the charges were serious and related to using of
abusive language and rash behaviour. In those cases, the Labour Court must approve the decision taken by the employer in dismissing the
workman.
17. Though several decisions of the High Court and the Supreme Court were cited, there is no necessity to refer to them in extensive and it is
suffice to refer to only one decision of the Supreme Court in Mahindra and Mahindra Ltd. v. N.B. Naravade 2005 (1) L.L.J. 1129. That was a
case where the Supreme Court took the extraordinary step of interfering with the Award confirmed by the single Judge and the Division Bench of
the High Court and disagreed with the view taken by the three Courts below. Therefore, it is necessary to refer to paragraphs 19 and 20 of the
said judgment:
Para 19: Learned Counsel appearing for the respondent, however, contended that even though all Courts below in regard to the factum of
misconduct have held against the workman / respondent still rightly came to the conclusion that the punishment of dismissal was too harsh a
punishment and was totally disproportionate to the misconduct proved. In support of this contention the learned Counsel pointed out from the
award of the Labour Court that it had taken into consideration that the respondent-workman had worked with the appellant company for a large
number of years and held that knowing the consequences of dismissal he would have by now learnt a lesson not to misbehave in future, hence, he
must be given an opportunity to redeem himself. He submitted that the Labour Court with the said view in mind had reduced the punishment. He
also relied on the observation of the learned single Judge that a punishment of dismissal for the proved misconduct on the facts of this case would
lead to miscarriage of justice and by reducing the said punishment workman has now received a proportionate punishment. From the judgment of
the Division Bench the learned Counsel pointed out that it has held that even intemperate and abusive language would not be sufficient to warrant
the punishment of dismissal. Relying on these observations of the Courts below the learned Counsel for the respondent-workman submitted that
since the Courts below have taken a lenient view of the matter which is permissible u/s 1A of the Act we should not interfere with the orders of the
Courts below in altering the punishment.
Para 20: It is no doubt true that after introduction of Section 11A in the Industrial Disputes Act, certain amount of discretion is vested with the
Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is
found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above
and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised u/s 11A is
available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience
of the Court, or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman
which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of
sympathy alone exercise the power u/s 11A of the Act and reduce the punishment. As noticed herein above atleast in two of the cases cited before
us, i.e. Orissa Cement Ltd. (supra) and New Shorrock Mills (supra), this Court held: ""punishment of dismissal for using of abusive language cannot
be held to be disproportionate."" In this case all the for a below have held that the language used by the workman was filthy. We too are of the
opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a
superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment
in the absence of any extenuating factor referred to herein above.
18. Coming to the facts of this case, it is seen that two charges were levelled against the workman relate to two incidents that took place on
20.02.1988 and 22.02.1988. In the first instance, he was charged about his questioning the authority disrespectfully for changing the shift of one
workman by name, S. Udhayakumar. A written complaint was given in support of the said charge. M.W.5 Augusty deposed against the petitioner.
In the domestic enquiry, it was held to be proved by accepting the written complaint followed by the oral evidence of M.W.5. However, the
Labour Court in paragraph 8 of the Award held as follows:
...Though the evidence of M.W.5 is in accordance with the complaint given by M.W.5 which is marked as Ex.M.17, in the absence of any other
piece of evidence to corroborate the evidence of M.W.5 and M.W.6 the findings of the enquiry officer that charge No. 1 is proved is not fair and
proper. Hence the finding of the enquiry officer holding that the first charge is proved is not in accordance with the evidence available and hence
the decision arrived at is not sustainable.
19. In respect of the second charge that on 22.02.1988, when he was shown some dust found in the Industrial Canteen, he abused the Industrial
Relation Officer. Witnesses were examined in support of the charges, viz., M.Ws.1 to 3 and the Labour Court held in paragraph 10 which is as
follows:
...The respondent management has clinchingly proved the 2nd charge as against the petitioner and the findings of the enquiry officer which is
marked as Ex.M.29 in respect of 2nd charge is found to be just and proper and the decision arrived at in this regard is not perverse and based
only on material evidence both oral and documents.
20. Therefore, the only question to be decided is whether the Labour Court was correct in disagreeing with the evidence recorded by the
Management in a validly conducted enquiry on the ground that there was no corroboration for the evidence of M.W.1 and themselves.
21. This is not a case where the Labour Court disbelieved the evidence of either M.W.5 or M.W.6. But, on the contrary, it disagreed with the
finding of the Enquiry Officer solely on the ground that there was no corroboration. Such a finding of the Labour Court is not warranted. It is not
that in every case corroboration was required. It is not as if the Labour Court found that the finding recorded by the Enquiry Officer in domestic
enquiry is perverse. Therefore, the finding rendered in paragraph 8 with reference to the first charge of the Labour Court is highly improper and
hence, the guilty of the workman should be found to be proved on both heads.
22. Apart from the above fact, the Labour Court recorded the previous history of the punishment imposed on the workman and the past record of
the workman was found reflected in the second show cause notice Ex. M.30. It contains several punishments given to the petitioner over the years
and some of them include similar type of misconduct levelled against him. Therefore, once if the cumulative effect of both the charges having been
proved and the past records were also took into account by the employer, it is very little that the Labour Court can do in such matters.
23. In this context, it is relevant to refer to the recent judgment of the Supreme Court in J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another, and
the following passage found in the said judgment may be usefully reproduced below:
The Labour Court held that one serious charge was proved, another charge was not proved and in regard to the third charge gave ""benefit of
doubt"" to the employee. The charge established against the employee was a serious one, that the first respondent made false (indecent) allegations
against his superior officer, and thereby violated office discipline. The Labour Court did not record a finding that the punishment was harsh or
disproportionately excessive. It interfered with the punishment only on the ground that the employee had worked for four years without giving room
for any such employment. It ignored the seriousness of the misconduct. That was not warranted. The consistent view of the Supreme Court is that
in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charge established, the Labour Court should
not interfere with the punishment. It is therefore held that the punishment of dismissal did not call for interference.
24. In the light of the above, the Award of the Labour Court insofar it granted the relief of reinstatement with 75% backwages is not permissible
especially when the charge of misconduct is found to be proved and the punishment cannot be said to be disproportionate. Therefore, W.P. No.
42507 of 2002 will stand allowed and the Award of the Labour Court will stand set aside. However, the amount already paid to the workman by
way of interim order u/s 17B of the I.D. Act will not be recovered from the workman.
25. In the result, W.P. No. 42507 of 2002 will stand allowed and W.P. No. 14751 of 2007 will stand dismissed. The Management is entitled to
withdraw the amounts lying in deposit with the Labour Court. However, there will be no order as to costs.
