ORDER
1. Aggrieved against the award of the Labour Court, Tirunelveli, dated October 24, 1994 in I.D. Nos. 52 to 56 and C.P. Nos. 20 to 24 of 1993, the management has filed the present Writ Petition to quash the said award on various grounds.
2. The case of the petitioner/management is briefly stated hereunder : It is engaged in the manufacture of rubberised coir products. Respondents 2 to 5 were employed in the petitioner’s establishment. On July 20, 1992 they unauthorisedly entered the cabin of the manager and demanded that some of the workmen in the third shift should be given work in the second shift itself. They also threatened the manager with dire consequences if their demand was not met. The manager explained and informed that all matters could be discussed before the Deputy Commissioner of Labour on July 22, 1992. Respondents 2 to 5 did not heed the advice of the manager and shouted that they would not do any work and would not allow any materials to go out of the factory. When the manager was leaving for his house in his car, Respondents 2 to 5 along with one Arjunan obstructed the car from moving out and shouted that unless their issues were settled, they would not allow the manager to return home. While the manager was in his car TSL 5553, nine workmen including Respondents 2 to 5 came from behind and broke the glass wind screen of the car by using wooden reapers. The manager had to leave the car at the spot, and he made a complaint to the police. Arising out of the above incidents, charges were issued to the Respondents 2 to 5 and they were asked to appear for domestic enquiry. In the enquiry after giving proper opportunity to Respondents 2 to 5, orders were passed on October 26, 1992 dismissing them from service. They raised an industrial dispute challenging their dismissal. They also preferred claim petitions making a claim for bonus of 20 percent of wages for the accounting year 1991-92. The first respondent by order dated October 24, 1994 after holding that charges levelled against Respondents 2 to 5 were proved, considering their long service and family back ground, directed the petitioner-management to pay Respondents 2, 3 and 5 a sum of Rs. 37,000/- as compensation inclusive of gratuity and Rs. 27,000/- to the fourth respondent as compensation inclusive of gratuity. The first respondent has also computed a sum of Rs. 1000/- as due to Respondents 2 to 5 towards bonus for the year 1991-92. The said award is being questioned in the above writ petition by the management.
3. The Respondents 2 to 5 filed a counter affidavit disputing various averments made by the petitioner-management. In their counter affidavit they have explained their number of service ranging from 9 years to 22 years. They also contended that without providing an opportunity to them the Enquiry Officer submitted a report and since all of them are illiterate without knowing the rules and procedures, they could not participate in the enquiry. They also contended that the grievances of the workmen is that an award of reinstatement ought to have been made and because of the adverse circumstances, the concerned workmen could not muster enough funds to challenge the award. It is also contended that the Labour Court in exercise of its powers vested under Section 11-A of the Industrial Disputes Act and in view of their good past record in service, payment of reasonable compensation is quite reasonable and in accordance with law. In such circumstance, the judicial review by this Court is very limited and prayed for dismissal of the Writ Petition.
4. In the light of the above pleadings, I have heard Mr. P. Ibrahim Kalifulla, learned counsel for the petitioner-management and Mr. K. S. Narayanan learned counsel for the Respondents 2 to 6 workmen.
5. Mr. P. Ibrahim Kalifulla, learned counsel for the petitioner raised the following submissions :
(1) The Labour Court having found that the charges against Respondents 2 to 5 were proved ought not to have interfered with the punishment of dismissal. In other words, in the light of the conclusion arrived at by the first respondent, there is no warrant to award compensation, hence the Labour Court had exceeded its power provided under Section 11-A of the Industrial Disputes Act.
(2) In view of confirmation of finding regarding misconduct and in view of Section 9 of Payment of Bonus Act, the award of Rs. 1000/- for each Respondents 2 to 5 towards bonus for the year 1991-92 cannot be sustained. In support of both of his contentions, he also brought to my notice the following decisions :
(1) 1991-I-LLJ-372 (Madras Division Bench). (2) 1980-I-LLJ-425 (Madras Division Bench). (3) 1992-II-LLJ-825 (Punjab and Haryana). (4) 1989-II-LLN-1044 (Division Bench, Madras). (5) 1959-II-LLJ-619 (Madras) (6) 1997-II-LLJ-833 (Division Bench, Madras).
6. On the other hand Mr. K. S. Narayanan after taking me through the relevant portion of the award, submitted that inspite of confirmation of finding regarding misconduct the Labour Court while exercising the power under Section 11-A of the Industrial Disputes Act has ample discretion to award compensation in appropriate cases. He also submitted that if such discretion is properly exercised, the power of judicial review under Article 226 of the Constitution of India is very limited and prays for dismissal of the Writ Petition. In support of the above propositions he relied on the following decisions :
(1) 1982-II-LLJ-472 (SC) (2) 1990-II-LLJ-468 (Mad) (3) 1990-II-LLJ-226 (SC) (4) 1987-I-LLN-405 (Madras) (5) 1995-II-LLJ-173 (Madras) (6) 1990-I-LLJ-298 (Madras).
7. Since the short question to be decided in this case is whether the direction of the Labour Court for payment of compensation to the Respondents 2 to 5 is justified or not, I am not traversing the other factual position. There is also no dispute that the Labour Court has upheld the report of the Enquiry Officer, opportunity given to the workmen before the Enquiry officer and the ultimate conclusion of the management with regard to dismissal of Respondents 2 to 6. As stated earlier, the limited question is when the Labour Court having found that the misconduct raised against Respondents 2 to 6 is proved, confirming the order of dismissal, is justified in awarding compensation. In order to appreciate the rival submissions, I hereby extract Section 11-A of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) :-
11-A : Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require :
Provided that in any proceeding under this Section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter”.
8. Now I shall consider the decision cited by the learned counsel for the petitioner with reference to the above provision. In Engine Valves Ltd. v. Labour Court, Madras and another (1991-I-LLJ-372) the Division Bench of this Court has held that Labour Court has duty to consider whether punishment is disproportionate or shockingly severe to the charges held proved and record a specific finding whether reinstatement would be expedient and proper or compensation in lieu of reinstatement would meet the ends of justice. Relying on the said decision, the learned counsel for the petitioner submits that in the absence of any reason in the; impugned award, the Labour Court is not justified in granting compensation.
9. Mere length of service is not a criterion in awarding lesser punishment for which the learned counsel relied on a decision of this Court reported in Sri Gopalakrishna Mills Pvt. Ltd., v. Labour Court (1980-I-LLJ-425). Their Lordships in the Division Bench have observed thus at pp. 431-432 :
“….. 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 workmen 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 ears 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 two 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 a 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.”
10. Relying on a decision of Punjab and Haryana High Court in Punjab Financial Corporation v. Union Territory, Chandigarh and others (1992-II-LLJ-825) the learned counsel for the petitioner submitted that if misconduct is proved by evidence, termination of service is a proper punishment and no lenient punishment is warranted. The learned counsel further submitted that it cannot be said that when a worker or employee is found guilty of riotous and disorderly behaviour the punishment of dismissal is extreme or that it is shockingly disproportionate to his misconduct for which he relied on a decision of the Division Bench of this Court reported in South India Sugar Ltd., v. First Additional Labour Court, Madras 1989 II LLN 1044.
11. The other decision referred to by the petitioner is Dharmapuri District Co-op. Sugar Mills v. Labour Court, Vellore (1997-II-LLU-833) (Mad). The learned counsel has very much relied on the following passage in the said judgment 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 Section 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 enbarrassed 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 proposition would only lead to interfering with the managerial functions to the extent of destroying the discipline and control in the entire factory. Section 11-A of the Act is not intended to embarrass 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 a 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.”
12. The analysis of the decisions referred to by the learned counsel for the petitioner shows that if the misconduct is proved, it is not open to the Labour Court to award lesser punishment, namely, compensation etc., by way of misplaced sympathy towards workmen. However, on a thorough scrutiny of the above decision, I am of the view that it depends upon the facts and circumstances of each case, irrespective of confirmation of the dismissal order in a particular case if the facts are established, it is open to the Labour Court to award compensation.
13. Now I shall consider the decisions referred to by the learned counsel for the respondent. In Rama Kant Misra v. State of U. P. and others (1982-II-LLJ-472) the Apex Court has observed thus p. 475 :
“……. Before we can exercise the discretion conferred by Section 11-A the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. These words indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case, meaning thereby that the punishment was either disproportionately heavy or excessive. As stated earlier, it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged.”
14. In a decision reported in The Management of TAFE v. R. Venkataraman and others (1990-II-LLJ-468), the Bench of this Court with regard to exercise of powers under Article 226 of the Constitution of India against the award of the Labour Court or Tribunal has observed thus at p. 469 :
“Once the Labour Court in the exercise of its powers under Sec. 11-A of the I.D. Act evaluates the gravity of misconduct for the purpose of punishment to be imposed on a workman and exercises its discretion, High Court exercising jurisdiction under Art. 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 the Labour Court. After elaborate consideration, the Labour Court came to the conclusion that the punishment was disproportionate and ordered reinstatement of the worker and denied him back wages from date of suspension till date of reinstatement. This is within the powers of the Labour Court. When once the discretion is exercised judicially and it is held that the punishment was not disproportionate to the degree of the guilt on the basis of reasons, High Court cannot interfere with the award”.
15. In Workmen of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz Werner (P) Ltd., (1990-II-LLJ-226) the Apex Court has held in the following manner at p. 234 :
“The misconduct that has been found established against these five workmen involves threatening the highest executive, viz., the President of Company, with dire consequences, wrongfully confining him in his room and compelling him to withdraw the notice. These acts of misconduct involve acts subversive of discipline on the part of these workmen. Three of these workmen were office bearers of the Union. It cannot be said that these workmen had acted at the instigation of somebody. Taking into consideration the facts and the circumstances of the case, we are of the opinion that, keeping in view the interests of the industry, this is a case where it can be said that it is not desirable and expedient to direct reinstatement of these workmen. In our view, therefore, the direction with regard to reinstatement of these workmen cannot be sustained and in lieu of reinstatement they may be paid compensation for loss of future employment.”
16. In National Carbon Company, Madras v. Labour Court Madras 1987 I LLN 405 with regard to power of this Court against the award n of the Labour Court/Tribunal Nainar Sundaram, J. as he then was has observed thus :
“The lines of attack put forth by the learned counsel for the workmen require examination keeping in mind the limitations of this Court sitting in judgment under Art. 226 of the Constitution of India, over the award of the Labour Court. Assuming that the Labour Court was wrong in its assessment of the factual materials, that is not a matter for correction by this Court under Art. 226. This Court can venture to quash the award of the Labour Court, only if it stands vitiated by certain fundamental flaws like refusal of admissible and material evidence, erroneously admitting inadmissible evidence, which in fact has influenced the impugned finding, conclusion based on no evidence at all, perverse misreading of evidence and the like. A mistake of fact, however, grave, could not be corrected by this Court in writ powers. Credibility, adequacy or sufficiency of evidence cannot he gone into in writ jurisdiction. It is not the function of this Court while exercising powers under Art. 226 to review the evidence and to arrive at an independent finding.”
17. In Vridhachalam Co-op. Urban Bank Limited v. Labour Court, cuddalore (1995-II-LLJ-173) Raju, J., has observed thus at p. 176 :
“……. It is by now well settled that this Court, exercising jurisdiction under Art. 226 of the Constitution of India, does not exercise appellate jurisdiction and on the other hand only exercises supervisory control over the functioning of the Labour Court, and the exercise of powers by the forums constituted under the Act. Viewed in such context, I am of the view that the award of the Labour Court does not suffer from any patent error of law or perversity of approach, warranting the interference of this Court under Art. 226 of the Constitution of India. The writ petition, therefore, fails and shall stand dismissed.”
18. In the light of the above pronouncements, now I shall consider whether the compensation awarded by the Labour Court is justifiable or not. In para 15 of the award the Labour Court after considering the grievance of the workman has concluded thus :
“…….. it appears that the petitioners except the petitioner Arjunan have put in more than 20 years of service. It will be very difficult for them to seek employment elsewhere and therefore they will have to be provided with necessary alternative. Taking into consideration all the circumstances, I feel that alternative arrangements have to be made. Taking into consideration of the totality of the services of each petitioner, each petitioner should be paid a compensation of Rs. 37,000/- inclusive of gratuity amount except Arjunan who must be given a compensation of Rs. 27,000/- as compensation inclusive of gratuity amount so that with these amounts they could make out their livelihood elsewhere.
It is also brought to my notice that the aggrieved workmen (Respondents 2 to 6) have put in the following years of service as on 1992 :- the 2nd respondent S. Thangavel Achari-21 years, The 3rd respondent-C. Paranimivam-22 years, the 4th respondent – Murugan-21 years, the 5th respondent-P. Kuttalam-15 years, the 6th respondent-Arjunan-9 years.”
The above factual position clearly shows that except one Arjunan, sixth respondent herein, all of them have completed more than 15 years of service in the petitioner management. As rightly observed by the Labour Court, at this point of time, it will be very difficult for them to seek employment elsewhere. Hence, in the interest of justice, particularly considering their length of service and the family members, I am of the view that they have to be compensated reasonably. The above referred decisions clearly show that even in the case of proved misconduct, the penalty must be commensurate with gravity of the offence charged. In a similar situation, the Apex Court in (1990-II-LLJ-226) cited supra, directed payment of compensation for loss of future employment. Taking into consideration of the facts and circumstances of the case I am of the opinion that keeping in view the interest of the workmen and considering the totality of the services rendered by each petitioner and their family back ground, I do not find any error in the order of the Labour Court awarding compensation. Further, if the award of the Labour Court is based on acceptable evidence, it is not possible for this Court to interfere with the said conclusion. Hence, I hold that the payment of compensation to the Respondents 2 to 6 by the labour Court is in accordance with law and there is no need to interfere with the said award.
19. With regard to Gratuity, no doubt, Section 4(6) of the Payment of Gratuity Act, 1972 enables the employer to forfeit the gratuity amount to the extent of damage so caused. Here there is no evidence with regard to quantum of damage or loss so caused to the management. In the absence of any evidence regarding the quantum of loss or damage, I do not find any justification in rejecting the claim for gratuity. Hence I hereby confirm the award of the Tribunal with regard to gratuity.
20. Finally, the Labour Court directed payment of a sum of Rs. 1000/- towards bonus for the period 1991-92. The learned counsel for the petitioner relying on Section 9 of the Payment of Bonus Act, submitted that in view of proved misconduct, Respondents 2 to 6 are not entitled to bonus for the relevant year namely, 1991-92. Section 9 of the Payment of Bonus Act read as follows :
“Disqualification for bonus : 9. Notwithstanding anything contained in this Act, an employee shall be disqualified from receiving bonus under this Act, if he is dismissed from service for
(a) fraud, or (b) riotous or violent behaviour while on the premises of the establishment; or (c) theft, misappropriation or sabotage of any property of the establishment”.
If the workman is dismissed from service for riotous or violent behaviour while on the premises of the establishment, as per Section 9 of the Payment of Bonus Act, he is not entitled to bonus. Here the conclusion of the Labour Court is the workmen concerned involved in violent behaviour. If that is so, Section 9(b) of the Payment of Bonus Act is attracted. Hence, the objection of the learned counsel for the petitioner is well-founded. As a matter of fact, the Labour Court without giving any reason merely directed the management to pay a sum of Rs. 1000/- to each one of the workmen (Respondents 2 to 6). In those circumstances, the award of the Labour Court directing the management to pay a sum of Rs. 1000/- to each one of the workmen (Respondents 2 to 6) cannot be sustained and, accordingly, the same is set aside.
21. Net result, except the modification of the award relating to payment of Rs. 1000/- to each Respondents 2 to 6 herein, I hereby confirm the award in other respects. Accordingly, the Writ Petition is ordered on the above terms. No costs.