ORDER
P.D. Dinakaran, J.
1. The petitioner was employed as a packer in the packing department of the first respondent biscuit factory from April 6, 1974. However, he was placed under suspension from April 26, 1981 and thereafter served with two charge memos dated April 28, 1981 and August 11, 1981 respectively. The first charge memo dated August 28, 1981 is for an alleged misconduct that the petitioner was found eating some biscuits while he was packing the biscuits and the second charge memo dated April 11, 1981 is for an alleged misconduct that he had abused his supervisor in filthy words. An enquiry was conducted on the said charges and by a report dated October 9, 1981, both the charges were held proved, finding that the petitioner was guilty of both the charges levelled against him. Hence a second show cause notice was issued to him on October 13, 1981, proposing to dismiss the petitioner from service, to which the petitioner submitted his explanation on October 19, 1981 and not satisfied with the same, the petitioner was dismissed from service by an order dated Novembers, 1981. Of course, after taking into account, the past service records of the petitioner, against which, the petitioner raised an industrial dispute in I.D. No. 41 of 1992 before the second respondent, who, by award dated March 30, 1993, upheld the order of dismissal dated November 5, 1981, referred to above. Hence, the above writ petition.
2 Mr. M.R. Vaidyanathan, learned counsel for the petitioner, placing reliance on the decisions in:
i. National Carbon Co. v. Labour Court reported in 1987 I Lab LN 405; and
ii. Management of M.F.L. v. P.O. I Addl. Labour Court reported in 1990-I-LLJ-298 (Mad) contends that even though the second respondent Management took the past service of the petitioner into account for the purpose of imposing the impugned punishment, of dismissal, no opportunity was given to him to deny the same before imposing the major punishment of dismissal.
3. Learned counsel for the petitioner contends that the Labour Court failed to exercise its power conferred under Section 11A of the Industrial Disputes Act, to interfere with the punishment of dismissal on the ground that even if the alleged misconduct is proved, the same do not require a major punishment of dismissal from service, in as much as the charge that the petitioner was found eating a biscuit at the time of packing the biscuit and that he had abused a superior officer in filthy words themselves, would not require a punishment of dismissal. In this regard, the learned counsel for the petitioner places reliance on the decision in Virudachalam Co-operative Urban Bank Ltd. v. Labour Court, Cuddalore reported in 1995-II-LLJ-173 (Mad).
4. The learned counsel for the petitioner, further contends that the dismissal of the petitioner on the ground that the petitioner raised an industrial dispute belatedly, is illegal, as the Limitation Act is not applicable to the proceedings under the Industrial Disputes Act, as held in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. .
5. Mr. S. Ravindran, learned counsel appearing for the second respondent Management, placing reliance on the decision of a Division Bench in Engine Valves Ltd. v. Labour Court, Madras reported in 1991-I-LLJ-372 (Mad-DB) contends that the mere reference to the order of dismissal that the second respondent Management had considered the past records of the petitioner is sufficient as there is no further duty cast on the Management to provide an opportunity to the petitioner with regard to such consideration of past records of the petitioner.
6. The learned counsel for the second respondent further contends that under the facts and circumstances of the case, the misconduct that the petitioner was found eating the biscuits on April 24, 1981 at the time of his duty is proved and that he abused his superior officer when he was on duty on August 10, 1981 was also found proved and therefore, the punishment of dismissal imposed in the impugned proceedings cannot be said to be disproportionate.
7. Mr. S. Ravindran, learned counsel for the second respondent Management is not disputing the proposition laid down by the Apex Court in Ajaib Singh v. Sirhind Co-operative-Marketing-cum-Processing Service Society Ltd. (supra), that the provisions of the Limitation Act are not applicable to the proceedings under the Industrial Disputes Act.
8. After a careful consideration of the rival submissions of the learned counsel for the petitioner and the second respondent. I am of the opinion that since the scope of judicial review against the impugned award of punishment is very limited, this Court by exercising the powers under Article 226 of the Constitution of India cannot reappreciate the evidence that are weighed by the first respondent Labour Court and the second respondent Management.
9. It is true that the charge that the petitioner was found eating biscuits on April 24, 1981 while he was on duty was proved and it is equally true that the charge that the petitioner abused his superior while he was on
duty is also proved. It is argued on behalf of the petitioner that the said charges themselves do no warrant punishment of dismissal of the petitioner. Assuming that the second respondent Management proposes to rely upon the records of past service of the petitioner that he was in the habit of eating biscuits while he was on duty, the second respondent certainly ought to have afforded an opportunity to the petitioner to make his say over the same, “as held in National Carbon Co. v. Labour Court (supra). The above view is also supported by a decision of a Division Bench of this Court in Management of M.F.L. v. P.O. I Additional Labour Court, (supra), wherein, it is held that denial of a reasonable opportunity to the workmen to accept the past record of service at the appropriate time vitiates and nullifies the final order of punishment merely giving an opportunity against such past record of service to the petitioner, even at a subsequent stage, namely, in the instant case, before the Labour Court, will not cure the defect, because, there was a violation of principles of natural justice and as a result, an error had crept into the thinking on the part of the Management at the very inception stage while considering the past record of service of the employee in the matter of imposition of punishment and therefore, such vitiating factor of denial of opportunity to the workman to accept the past record of service at the appropriate time nullifies the resultant action in the matter, as the same would not stand nullified (sic) by affording an opportunity at a subsequent stage.
10. Even in the case of Engine Valves Ltd. v. Labour Court, Madras (supra) relied upon by the Management, the Division Bench has observed that the nature of consideration of the past records of service of the employee that is required, could be indicative of the manner in which it requires to be considered, particularly when the Management proposes to impose a ;major punishment. Therefore, in my considered opinion, the mere opportunity given to the petitioner to make his say over the past record of service while justifying the punishment imposed at the subsequent stage, namely before the Labour Court, would not cure the defect of denial of opportunity to the employee at the appropriate stage, namely, before imposing the major punishment of dismissal. Hence, I am satisfied that the impugned order of punishment of dismissal, having been awarded and inflicted upon the petitioner without providing an opportunity to the petitioner to make his say over his past record of service that was said to have been taken into account by the first respondent management while imposing the major punishment of dismissal, is held to be in violation of the principles of natural justice, as contemplated under the standing orders, and therefore, the same is vitiated and nullified.
11. That apart, with regard to the allegation that the petitioner had abused his superior, I am obliged to refer the decision of D. RAJU, J. (as he then was) in Virudachalam Co-operative Bank Ltd. v. Labour Court, Cuddalore (supra), wherein, a cashier of Co-operative Bank was charge sheeted for making certain accusations against the Secretary of the Bank using indecorous language. It was held that no exception could be taken to the award of the Labour Court in interfering with the quantum of punishment, as the gravity of charge of using indecorous language contained in the explanation to the charge memo has to be viewed in the light of the surrounding circumstances, which had driven the worker to resort to such method. It is further held that the mere indiscreet use of language cannot be the basis of an order of dismissal. No doubt, the language employed by the petitioner is unparliamentary in the instant case; but the gravity of charge of using the same has to be viewed in the light of the surrounding circumstances, also keeping in view the action of the Management, which had driven the
worker to such a situation. Therefore, the mere usage of such language cannot itself be, per se, the basis of an order of dismissal. If that be so, the Labour Court, having been vested with the power to interfere with the quantum of punishment such as inflicted upon the petitioner and having failed to exercise such power to interfere with the quantum of punishment imposed upon the petitioner when he was sought to be dismissed from service for very trivial charges, requires this Court to interfere with such order of dismissal that shocks the conscience of this Court, as held in U.P. State Road Transport Corporation v. Mahesh Kumar Mishra .
12. Of course there is no serious contest on behalf of the first respondent Management as to the proposition laid down in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. that provisions of the Limitation Act is not applicable to the proceedings under the Industrial Disputes Act. However, the admitted delay of three years on the part of the petitioner in raising the impugned industrial dispute has to be taken into consideration while fixing the consequential benefits, which he is entitled for, while setting aside the impugned order of dismissal.
13. In the result, I am obliged to set aside the order of dismissal and the second respondent is directed to reinstate the petitioner with back wages, except for the period of delay of three years, with continuity of service, with two weeks from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs.