IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 215 of 2009()
1. B.RAJAGOPAL, 44 YEARS, S/O.G.
... Petitioner
Vs
1. JOMY XAVIER, MANAGING PARTNER,
... Respondent
2. INDUSTRIAL TRIBUNAL IDUKKI.
For Petitioner :SRI.H.B.SHENOY
For Respondent :SRI.E.K.NANDAKUMAR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :03/03/2010
O R D E R
C.R.
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
----------------------------------------------
W.A. No.215 & 250 of 2009
----------------------------------------------
Dated 3rd March, 2010.
J U D G M E N T
Balakrishnan Nair, J.
These Writ Appeals are filed against the common
judgment of the learned Single Judge in W.P.(C) Nos.5522 and
21226 of 2004. The management and the workman challenged
the award of the Industrial Tribunal, Idukki, in I.D.No.42/01, by
filing the above Writ Petitions. The learned Single Judge, by the
aforementioned common judgment, allowed the Writ Petition filed
by the management and dismissed the Writ Petition filed by the
workman. Hence, these two Writ Appeals by the workman,
challenging the said common judgment.
2. The brief facts of the case are the following : Unless
otherwise specifically mentioned, the parties and exhibits are
mentioned as referred to in W.P.(C)5522/04, from which
W.A.215/09 arises. The appellant was a workman of a coffee
estate in Nelliampathy, owned by a partnership firm, viz.,
Walliawarum Plantations. The first respondent herein is its
Managing Partner. It appears, the appellant was apprehending
disciplinary action against him. In that context, it is alleged that
WA Nos.215 & 250 of 2009 2
he threatened the father of the Managing Partner, of dire
consequences to his son, if any action is taken against him. It is
also alleged that he, along with his brother threatened one of the
partners of the firm, by blocking his car and entering into it. For
the above mentioned alleged misconducts, disciplinary
proceedings were initiated against the appellant, by issuing a
charge memo dated 4.9.1997. A translation of the said charge
memo reads as follows :-
“Your reply dated 10.9.1997 to the notice dated
4.9.1997 issued to you, has been received. Various assertions in
your aforesaid reply having no nexus with the charges levelled
against you as per notice dated 4.9.1997, are not being dealt
with now. However, your explanations to the charges levelled
against you are not satisfactory. Therefore, you are issued a
charge sheet as hereunder.
“Due to enmity of majority of workmen employed in
the coffee and cardamom estate of Walliawaram Plantations
situated at Nelliampathy; you while residing in your house at
Arumannoor with the knowledge of the management since
24.7.1997, along with your brother, B.Anilkumar acting on your
instigation had on several occasions in the month of August 1997
threatened and caused mental pain by stating “Your son will be
killed” to Mr.K.M.Xavier residing at Kadakkassery House,
Kanjikuzhi, at his house, who is the father of the partners and
who is leading a retired life due to sickness and old age. Further,
you had on several occasions threatened him over phone stating
“I am going to the estate, and if anybody dares to touch me, I will
WA Nos.215 & 250 of 2009 3
kill your son.”
Further, on 1.9.1997 at about 3 p.m., when
Shri.Johny Joseph who is one of the owners of the estate was on
his way to his house at Ayyarkunnam, you along with your
brother, B.Anilkumar obstructed the car while in front of
Ayyarkunnam High School, having followed and overtaken it.
After obstructing the car when you shouted “Can’t you issue
notice terminating my services, you rascal?” and when Mr.Johny
replied asking you to pose it to the person authorized for it at
Kottayam and not to him, you again shouted “That useless is of
no use.” You forcefully got into the car stating that he should not
be allowed to leave. When the car started slowly moving
forward, you tried to stop the car by pushing the gear lever, tried
to take off the switch key, caught hold of his hand and switched
off the car by forcibly pressing the clutch. When you threatened
to stab him with knife, people around gathered hearing the
commotion and thereupon you alighted from the car and went off
with your brother by scooter.”
To conduct an enquiry into the matter, Shri.Santosh
Modayil, Advocate, Kottayam-2 is appointed as the Enquiry
Officer. The venue, date, time, etc. will be informed to you by
him and you are required to participate in the enquiry conducted
by him. In the enquiry you will be given all opportunity to cross-
examine evidence against you and to adduce evidence from your
side. In case of your non-participation in the enquiry, enquiry will
be proceeded ex parte and further proceedings will be initiated.
Pending the said enquiry proceedings, your suspension as
per notice date 4.9.1997 is hereby extended.”
The appellant filed his reply, denying the allegations. The
WA Nos.215 & 250 of 2009 4
Enquiry Officer, so appointed, enquired into the charges. The said
officer, who is an Advocate, submitted the enquiry report, finding
the appellant guilty of the aforementioned two allegations. The
first respondent accepted the enquiry report, after considering
the objection of the appellant to the same. Based on the said
report, the appellant was dismissed from service by the first
respondent, by order dated 7.4.1998. The appellant/workman
raised an Industrial Dispute before the Conciliation Officer, under
Section 2-A of the Industrial Disputes Act, 1947 (for short, ‘the
Act’). Since the conciliation efforts failed, the matter was
reported to the Government, which in turn, referred the dispute
for adjudication, as per Government Order dated 18.6.2001. The
issue referred was “Whether the dismissal of Shri.B.Rajagopal,
workman by the management of Walliawarum Plantations is
justifiable? If not, what relief the workman is entitled to?”
3. The Tribunal, as a preliminary issue, found
that the enquiry was validly held and also came to the conclusion
that the aforementioned charges were proved, based on the
evidence on record. Thereafter, the Tribunal proceeded to
consider whether the punishment imposed was proper, invoking
WA Nos.215 & 250 of 2009 5
its power under Section 11-A of the Act. The Tribunal took the
view that the punishment of dismissal awarded to the workman
was too harsh and disproportionate to the gravity of the
misconduct proved against him. Based on that finding, the
Tribunal further ordered that the management should reinstate
the workman, without back wages. The Tribunal was of the view
that the denial of the entire back wages for the period he was
kept out of service, will serve as adequate punishment. Ext.P1 is
the award passed by the Industrial Tribunal, on 31.12.2003. The
management challenged the award, by filing W.P.(C)
No.5522/2004. The workman, feeling aggrieved by the denial of
back wages, filed W.P.(C) No.21226/2004. The learned Single
Judge, after hearing both sides, allowed the Writ Petition filed by
the management and dismissed the Writ Petition filed by the
workman, by the common judgment dated 28.11.2008. As
mentioned earlier, the aggrieved worker has, therefore, preferred
these two Writ Appeals.
4. We heard Smt.Lakshmi B.Shenoy, learned counsel for the
appellant and Sri.E.K.Nandakumar, learned counsel for the first
respondent/management. The main point that arises for decision
WA Nos.215 & 250 of 2009 6
is whether the learned Single Judge was justified in interfering
with the award, by taking the view that for the misconduct
proved, the punishment imposed by the management was
appropriate. According to the learned Judge, the punishment
cannot be described as grossly disproportionate to the gravity of
the offence proved.
5. Before going into the above point, we would refer
to Section 11-A of the Act and the history behind the introduction
of that Section. Section 11-A reads as follows :-
“11-A. Powers of Labour Courts, Tribunals and
National Tribunals to give appropriate relief in case of discharge
or dismissal of workmen.–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 workman 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
WA Nos.215 & 250 of 2009 7
any fresh evidence in relation to the matter.”
(emphasis supplied)
This provision was introduced by the Amending Act 45 of 1971,
with effect from 15.12.1971. The Parliament decided to introduce
the above provision, with the intention of conferring wider powers
to the Labour Courts/Industrial Tribunals, when the dispute before
them related to dismissal/discharge of workmen from service.
The Apex Court, in Indian Iron and Steel Co.Limited v. Their
Workmen [1958(1) LLJ 260], while dealing with the powers of the
Industrial Tribunals and Labour Courts, in the matter of
termination of service of the workmen, held as follows :
“In cases of dismissal on misconduct, the Tribunal
does not, however, act as a Court of appeal and substitute its own
judgment for that of the management. It will interfere, (i) if there
is a want of good faith (ii) when there is victimization or unfair
labour practice, (iii) when the management has been guilty of a
basic error or violation of a principle of natural justice and (iv)
when on the materials, the finding is completely baseless or
perverse.”
The objects and reasons of the Amending Act, introducing Section
11A read as follows :
“In Indian Iron and Steel Co.Limited v. Their Workmen
[1958] I L.L.J. 260, the Supreme Court, while considering the
Tribunal’s power to interfere with the management’s decision to
dismiss, discharge or terminate the services of a workman, has
WA Nos.215 & 250 of 2009 8
observed that in cases of dismissal for misconduct the, Tribunal
does not act as a Court of appeal and substitute its own judgment
for that of the management and that the Tribunal will interfere
only when there is want of good faith, victimization, unfair labour
practice, etc. on the part of the management.
2. The International Labour Organization, in its
recommendation (No.119) concerning “Termination of
employment at the initiative of the employer” adopted in June
1963, has recommended that a worker aggrieved by the
termination of his employment should be entitled to appeal
against the termination, among others, to a neutral body such as
an arbitrator, a Court, an arbitration committee or a similar body
and that the neutral body concerned should be empowered to
examine the reasons given for the termination of employment and
the other circumstances relating to the case and to render a
decision on the justification of the termination. The International
Labour Organization has further recommended that the neutral
body should be empowered (if it finds that the termination of
employment was unjustified) to order that the worker concerned,
unless reinstated with unpaid wages should be paid adequate
compensation or afforded some other relief.
3. In accordance with these recommendations, it is
considered that the Tribunal’s power in an adjudication
proceeding relating to discharge or dismissal of a workman should
not be limited and that the Tribunal should have the power, in
case wherever necessary to 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
workman including the award of any lesser punishment in lieu of
discharge or dismissal as the circumstances of the case may
require. For this purpose, a new S.11A is proposed to be inserted
in the Industrial Disputes Act, 1947.”
WA Nos.215 & 250 of 2009 9
The above quoted objects and reasons would show that one of
the reasons for the Parliament to introduce the above provision
was the aforementioned decision of the Apex Court in Indian
Iron and Steel Company’s case (supra). The Parliament also
took note of the recommendation of the International Labour
Organization to provide a neutral body, such as an Arbitrator, a
court, etc. to look into the grievance of the workman, who is
aggrieved by the termination of his employment. The objects
and reasons further clarify that in the case of discharge or
dismissal, the Tribunal’s power should not be limited and it should
have power to set aside the order of discharge or dismissal and
direct reinstatement of the workman on such terms and
conditions, if any, it thinks fit.
6. The above legislative history would show that after
the introduction of Section 11-A, the Industrial Tribunal has got
wider powers to deal with the case of dismissal of a workman.
Interpreting the scope of the above Section, the Gujarat High
Court has rendered an illuminative judgment. M.P.Thaker, C.J., as
His Lordship then was, speaking for the Division Bench of the
Court in R.M.Parmar v. Gujarat Electricity Board, Baroda
WA Nos.215 & 250 of 2009 10
(1982 LAB.I.C. 1031), after referring to the objects and reasons of
the Amending Act, observed as follows :
“The matter regarding imposition of penalty on employees
(it was so realized by International Labour Organization, an
international body) could not be left solely to the discretion of the
management even if the employee concerned is found to be guilty
of the charge levelled against him, presumably because of the
conditional approach of the disciplinary authority with his inbuilt
and inherent pro-employer-anti-employee bias. That is why in
obeisance to the felt needs of the time it was considered
necessary to entrust this most vital function to a neutral body.
With the end in view that the employees were not treated more
harshly than they deserved in the context of facts and
circumstances of the case, and that the employee could get the
protection of the Labour Court which could be trusted to make a
just and fair approach, the provision was introduced by way of an
amendment. It is a benevolent power conferred on the Labour
Court and has to be exercised in the spirit in which the provision
has been enacted in order to further the intendment and purpose
of the legislation, keeping aglow before the mental eye some very
important dimensions of the matter, viz. :
(1) There is widespread unemployment in our country
and it is difficult to secure a job to earn enough to keep body and
soul together unlike in developed countries.
(2) The State does not provide social benefits like
unemployment allowance to enable a discharged employee to
sustain himself and his family to some extent, as is being done in
the developed countries.
(3) In imposing punishment on an erring employee an
enlightened approach informed with the demands of the situation
WA Nos.215 & 250 of 2009 11
and the philosophy and spirit of the time requires to be made. It
cannot be a matter of the ipse dixit of the disciplinary authority
depending on his whim or caprice.
(4) Be it administration of criminal law or the
exercise of disciplinary jurisdiction in departmental proceedings,
punishment is not and cannot be the ‘end’ in itself. Punishment
for the sake of punishment cannot be the motto. Whilst
deliberating upon the jurisprudential dimension the following
factors must be considered–
1. In a disciplinary proceeding for an alleged fault of
an employee punishment is imposed not in order to seek
retribution or to give vent to feeling of wrath.
2. The main purpose of a punishment is to correct
the fault of the employee concerned by making him more alert in
the future and to hold out a warning to the other employees to be
careful in the discharge of their duties so that they do not expose
themselves to similar punishment. And the approach to be made
is the approach parents make towards an erring or misguided
child.
3. It is not expedient in the interest of the
administration to visit every employee against whom a fault is
established with the penalty of dismissal and to get rid of them. It
would be counter productive to do so for it would be futile to
expect to recruit employees who are so perfect that they would
never commit any fault.
4. In order not to attract the charge of arbitrariness it
has to be ensured that the penalty imposed is commensurate with
the magnitude of the fault. Surely one cannot rationally or justly
impose the same penalty for giving a slap as one would impose
for homicide.
WA Nos.215 & 250 of 2009 12
5. When different categories of penalties can be
imposed in respect of the alleged fault one of which is dismissal
from service, the disciplinary authority perforce is required to
consult himself for selecting the most appropriate penalty from
out of the range of penalties available that can be imposed,
having regard to the nature, content and gravity of the default.
Unless the disciplinary authority reaches the conclusion that
having regard to the nature, content and magnitude of the fault
committed by the employee concerned it would be absolutely
unsafe to retain him in service the maximum penalty of dismissal
cannot be imposed. If a lesser penalty can be imposed without
seriously jeopardising the interest of the employer the disciplinary
authority cannot impose the maximum penalty of dismissal from
service. He is bound to ask his inner voice and rational faculty
why a lesser penalty cannot be imposed.
6. It cannot be overlooked that by and large it is
because the maximum penalty is imposed and total ruination
stares one in the eyes that the employee concerned is obliged to
approach the Court and avail of the costly and time-consuming
machinery to challenge in desperation the order passed by the
disciplinary authority. If a lesser penalty was imposed, he might
not have been obliged to take recourse to costly legal proceedings
which result in loss of public time and also result in considerable
hardship and misery to the employee concerned.
7. When the disciplinary proceedings end in favour of
the employee the employer has often to pay back wages say for
about 5 years without being able to take work from the employee
concerned. On the other hand, the employee concerned would
have had to suffer economic misery and mental torture for all
WA Nos.215 & 250 of 2009 13
these years. Even the misery of being obliged to remain idle
without work would constitute an unbearable burden. And when
the curtain drops everyone is left with a bitter taste in the mouth.
All because extreme penalty of dismissal or removal is imposed
instead of a lighter one.
8. Every harsh order of removal from service creates
bitterness and arouses a feeling of antagonism in the collective
mind of the workers and gives rise to a feeling of class conflict. It
does more harm than good to the employer as also to the society.
9. Taking of a petty article by a worker in a moment
of weakness when he yields to a temptation does not call for an
extreme penalty of dismissal from service. More particularly when
he does not hold a sensitive post of trust (pilferage by a cashier or
by a store-keeper from the stores in his charge, for instance, may
be viewed with seriousness). A worker brought up and living in an
atmosphere of poverty and want when faced with temptation,
ought not to, but may, yield to it in a moment of weakness. It
cannot be approved, but it can certainly be understood
particularly in an age when even the rich commit economic
offences to get richer and do so by and large with impunity. (And
even tax evasion or possession of black money is not considered
to be dishonourable by and large). A penalty of removal from
service is therefore not called for when a poor worker yields to a
momentary temptation and commits an offence which often
passes under the honourable name of Kleptomania when
committed by the rich.
The Labour Court in exercising its power to reduce
the penalty has to inform itself of these considerations and play
the role assigned to it by its creator loyally and faithfully and in
harmony with the enlightened spirit which permeates the
WA Nos.215 & 250 of 2009 14
legislation.”
We are in respectful agreement with the above view expressed
by the Gujarat High Court.
7. In this context, we think, it will be apposite to
incidentally refer to the powers of this Court, while judicially
reviewing the decision of a Labour Court or an Industrial Tribunal.
Though it is elementary, it has to be restated that doctrine of
ultra vires is the basis of judicial review. [See Administrative Law
(10th Edition-by Wade and Forsyth)].
“The simple proposition that a public
authority may not act outside its powers (ultra vires) might
fitly be called the central principle of administrative law.
The juristic basis of judicial review is the doctrine of ultra
vires. To a large extent the courts have developed the
subject by extending and refining this principle, which has
many ramifications and which in some of its aspects
attains a high degree of artificiality.
Where the empowering Act lays down limits
expressly, their application is merely an exercise in
construing the statutory language and applying it to the
facts. Thus if land may be taken by compulsory purchase
provided that it is not part of a park, the court must
determine in case of dispute whether the land is part of a
park and decide accordingly. If the Act says ‘provided that
in the opinion of the minister it is not a park’, the question
WA Nos.215 & 250 of 2009 15
is not so simple. Reading the language literally, the court
would be confined to ascertaining that the minister in fact
held the opinion required. But then the minister might
make an order for the acquisition of land in Hyde Park,
certifying his opinion that it was not part of a park. It is
essential to invalidate any malpractice of this kind, and
therefore the court will hold the order to be ultra vires if
the minister acted in bad faith or unreasonably or on no
proper evidence. Results such as these are attained by
the art of statutory construction. It is presumed that
Parliament did not intend to authorise abuses, and that
certain safeguards against abuse must be implied in the
Act. These are matters of general principle, embodied in
the rules of law which govern the interpretation of
statutes. Parliament is not expected to incorporate them
expressly in every Act that is passed. They may be taken
for granted as part of the implied conditions to which
every Act is subject and which the courts extract by
reading between the lines. Any violation of them,
therefore, renders the offending action ultra vires.
As with substance, so with procedure. One of the
law’s notable achievements has been the development of
the principles of natural justice, one of which is the right to
be given a fair hearing before being penalised in any way.
These principles are similarly based upon implied statutory
conditions: it is assumed that Parliament, when conferring
power, intends that power to be used fairly and with due
consideration of rights and interests adversely affected. In
effect, Parliament legislates against a background of
judge-made rules of interpretation. The judges have
constructed a kind of code of good administrative practice,
taking Parliament’s authority for granted. Even where
WA Nos.215 & 250 of 2009 16
sophisticated reasoning makes them appear to be
frustrating Parliament’s intentions they still claim,
paradoxically, to be respecting them.
An act which is for any reason in excess of power
(ultra vires) is often described as being ‘outside
jurisdiction’. ‘Jurisdiction’, in this context, means simply
‘power’, though sometimes it bears the slightly narrower
sense of ‘power to decide’, e.g. as applied to statutory
tribunals. It is a word to which the courts have given
different meanings in different contexts, and with which
they have created a certain amount of confusion. But this
cannot be explained intelligibly except in the particular
contexts where difficulties have been made. Nor should
the difficulties be exaggerated. For general purposes
‘jurisdiction’ may be translated as ‘power’ with no risk of
inaccuracy.
Any administrative act or order which is ultra vires
or outside jurisdiction is void in law, i.e. deprived of legal
effect. If it is not within the powers given by the Act, it has
no legal leg to stand on. The situation is then as if nothing
had happened, and the unlawful act or decision may be
replaced by a lawful one.”
It is also equally settled that the High Court cannot act as an
appellate authority over the decisions of the Labour
Courts/Industrial Tribunals. If the decision is within jurisdiction, it
is no part of the business of this Court to interfere with the
WA Nos.215 & 250 of 2009 17
decision of the Labour Court/Tribunal according to its opinion,
regarding the propriety of the punishment. There is no dispute
that broadly, the Labour Court/Tribunal has jurisdiction to
adjudicate a dispute concerning the dismissal of a workman.
But, while exercising that power, the Tribunal may stray out of
jurisdiction, if it follows a procedure, contrary to fundamental
judicial principles, like violation of the principles of natural justice,
or if it omits to take into account relevant matters or takes into
account irrelevant matters or misdirects itself in law. Even if after
following a proper procedure, the Tribunal arrives at a conclusion
which is patently perverse or one which no man in his senses
would arrive at, then also it can be described that the Tribunal
has strayed out of jurisdiction because the courts would say, the
Parliament cannot be intended to have conferred power on the
Tribunal to arrive at such a perverse decision. It is also well
settled in law that a difference of opinion or a different view was
possible on the facts of the case, is also not a ground for this
Court to interfere with the decision of an inferior tribunal. Lord
Hailsham of St.Marylebone L.C. In re W. (An infant) (1971)
A.C.682) put it felicitously that two reasonable persons can
WA Nos.215 & 250 of 2009 18
perfectly reasonably come to opposite conclusions on the same
set of facts, without forfeiting their title to be regarded as
reasonable. The above principle has been followed by the Apex
Court in several decisions. So, in this case, the point to be
considered is whether, based on the proven misconduct, if the
Tribunal takes the view that the punishment was
disproportionate to the gravity of the offence; so, the punishment
of dismissal was not warranted and denial of back wages alone
would be sufficient, can it be said to be a decision outside
jurisdiction or whether it can be described as one which no man
in his senses would take. We think, it is difficult to condemn the
decision of the Tribunal in that manner. A plausible view has been
taken on the facts. If we were acting as the original authority, we
might have taken a different view, but that will not enable this
Court to interfere with the decision of the Industrial Tribunal.
8. Yet another aspect has also cropped up during the
hearing of the Writ Appeals, though it was not raised during the
course of argument before the learned Single Judge. Going
through the memo of charges, the translation of which we have
quoted above, we have serious doubts whether those
WA Nos.215 & 250 of 2009 19
commissions and omissions from the part of the workman will
amount to a misconduct at all, for the purpose of taking
disciplinary action. If the view of the management is accepted,
we will be adding a new condition to the conditions of
employment of the workmen, that is to respect or not to
misbehave towards the near relatives of the persons in
management of the industrial establishment or the employer
concerned. In this case, the first allegation is that the workman
misbehaved towards the father of the Managing Partner of the
establishment. The second allegation is that the workman along
with his brother misbehaved towards a partner of the firm, who is
not directly concerned with the day-to-day affairs of the
establishment. In this context, we think, it is apposite to quote
the decision of the Apex Court in A.L.Kalra v. The Project and
Equipment Corporation of India Ltd. (AIR 1984 SC 1361)
wherein, it was held as follows :-
“22. Rule 4 bears the heading ‘General’. Rule 5
bears the heading ‘misconduct’. The draftsmen of the 1975 Rules
made a clear distinction about what would constitute misconduct.
A general expectation of a certain decent behaviour in respect of
employees keeping in view Corporation culture may be a moral or
ethical expectation. Failure to keep to such high standard of
moral, ethical or decorous behaviour befitting an officer of the
WA Nos.215 & 250 of 2009 20
company by itself cannot constitute misconduct unless the
specific conduct falls in any of the enumerated misconduct in
Rule 5. Any attempt to telesope R.4 into R.5 must be looked
upon with apprehension because Rule 4 is vague and of a general
nature and what is unbecoming of a public servant may vary with
individuals and expose employees to vagaries of subjective
evaluation. What in a given context would constitute conduct
unbecoming of a public servant to be treated as misconduct
would expose a grey area not amenable to objective evaluation.
Where misconduct when proved entails penal consequences, it is
obligatory on the employer to specify and if necessary define it
with precision and accuracy so that any ex post facto
interpretation of some incident may not be camouflaged as
misconduct. It is not necessary to dilate on this point in view of a
recent decision of this Court in Glaxo Laboratories(I) Ltd. v.
Presiding Officer, Labour Court, Meerut (1984)1 SCC 1 : (AIR 1984
SC 505), where this Court held that ‘everything which is required
to be prescribed has to be prescribed with precision and no
argument can be entertained that something not prescribed can
yet be taken into account as varying what is prescribed. In short
it cannot be left to the vagaries of management to say ex post
facto that some acts of omission or commission nowhere found to
be enumerated in the relevant standing order is nonetheless a
misconduct not strictly falling within the enumerated misconduct
in the relevant standing order but yet a misconduct for the
purpose of imposing a penalty’. Rule 4 styled as ‘General’
specifies a norm of behaviour but does not specify that its
violation will constitute misconduct. In Rule 5, it is nowhere
stated that anything violative of Rule 4 would be per se a
misconduct in any of the sub-clauses of R.5 which specifies
misconduct. It would therefore appear that even if the facts
alleged in the two heads of charges are accepted as wholly
WA Nos.215 & 250 of 2009 21
proved, yet that would not constitute misconduct as prescribed in
Rule 5 and no penalty can be imposed for such conduct. It may
as well be mentioned that R.25 which prescribes penalties
specifically provides that any of the penalties therein mentioned
can be imposed on an employee for misconduct committed by
him. Rule 4 does not specify a misconduct.”
We are not told that good behaviour towards near relatives of the
persons in management of the firm, is one of the conditions of
service of the workers. Unless it is a condition of service, we
think, going by the above principles laid down by the Apex Court,
it is doubtful whether the allegations in the charge-sheet could
have been the subject-matter of disciplinary action. But, it does
not mean that what the workman did was correct or not wrong.
But, the remedy of the management was to resort to the ordinary
remedies available to it before the concerned civil/criminal court.
No such contention was raised during the course of the argument
before the learned Single Judge or the Tribunal. Though this point
was not urged before the lower forums, we think, this Court is not
prevented from looking into what is manifest on the face of the
record. The learned Single Judge has quoted the charge-sheet, in
the judgment under appeal and went on to render the decision.
So, if the allegations in the charge memo do not disclose any
WA Nos.215 & 250 of 2009 22
misconduct warranting disciplinary action, we think, we are within
our powers to advert to that and render a decision.
9. Now, we will come to the decisions relied on by the
learned Single Judge, to interfere with the decision of the
Industrial Tribunal. They are the decisions of the Apex Court in
U.P.State Road Transport Corporation v. Subhash Chandra
Sharma and others [(2000) 3 S.C.C.324] , Usha Breco
Mazdoor Sangh v. Management of M/s.Usha Breco Ltd. &
another (2008 AIR SCW 6783), Mahindra and Mahindra Ltd.
v. N.B.Naravade [2005-I-LLJ 1129], Hombe Gowda
Educational Trust and another v. State of Karnataka and
others [(2006) 1 SCC 430], M.P.Electricity Board v. Jagdish
Chandra Sharma [(2005) 3 SCC 401], Muriadih Colliery of
Bharat Coking Coal Ltd. v. Bihar Colliery Kamgar Union
[(2005) 3 SCC 331] and Tata Engineering and Locomotive
Co.Ltd. v. N.K.Singh [(2006)12 SCC 554]. After referring to the
above decisions, the learned Single Judge has held as follows :
“Considering the gravity of the misconducts found
to have been committed by the workman in the light of the
above decisions, I have no doubt in my mind that the proved
misconducts were serious enough to warrant the punishment of
dismissal from service. In any way, it is settled law that the
WA Nos.215 & 250 of 2009 23
imposition of punishment on a delinquent workman is a
managerial function with which the Tribunal and this Court can
interfere only if the punishment imposed by the management is
shockingly disproportionate to the gravity of the misconducts.
On consideration of the misconducts found to have been
committed by the workman in this case, I am not satisfied that
the punishment of dismissal is shockingly disproportionate to
the gravity of the misconducts. Therefore, I am satisfied that the
Tribunal was in error in invoking powers under Section 11A of
the Industrial Disputes Act to interfere with the punishment
imposed by the management.”
The general principle emerging from the above decisions of the
Apex Court is that the Tribunal can interfere with the punishment,
if only it is shockingly disproportionate to the gravity of the
misconduct proved. The Tribunal took the view that the
punishment is grossly disproportionate to the gravity of the
misconduct proved. This Court can interfere with the same, if
only the learned Judge found that the said view of the Tribunal is
one which no man in his senses would take. We notice that the
learned Judge has acted, as if this Court was sitting in appeal over
the decision of the Industrial Tribunal. If it was exercising the
appellate power, the finding of the learned Single Judge is
perfectly correct. But, when it comes to judicial review, other
principles govern the field. As mentioned earlier, difference of
WA Nos.215 & 250 of 2009 24
opinion does not afford a ground for judicial review.
Administrative Law (Wade and Forsyth-10th Edition) deals with the
above aspect in the following manner :-
“There is ample room, within the legal boundaries,
for radical differences of opinion in which neither side is
unreasonable. A number of statements to this effect were
made in the Court of Appeal and the House of Lords in the case
of the Tameside schools, discussed below. Lord Denning MR
pointed out the error of confusing differences of opinion,
however strong, with unreasonableness on the part of one side
or the other. One party may call the other ‘quite unreasonable’
when he is well within the legal limits of reasonableness. This
was the distinction which the Secretary of State failed to make,
as the House of Lords emphatically confirmed. Lord Diplock
said:
The very concept of administrative
discretion involves a right to choose between more
than one possible course of action upon which there is
room for reasonable people to hold differing opinions
as to which is to be preferred.
In the same vein Lord Hailsham LC has said that ‘not
every reasonable exercise of judgment is right, and not every
mistaken exercise of judgment is unreasonable’.”
In the light of the above principles, the Tribunal’s view regarding
punishment being a plausible view, cannot be interfered with.
10. Some of the decisions of the Apex Court
mentioned above, deal with the physical violence/abuse from the
WA Nos.215 & 250 of 2009 25
part of the workman, against the officers of the management or
their contractors. In that context, the punishment of dismissal
was sustained and where it was interfered with by the Tribunal or
High Court, the same was reversed by the Apex Court. But, we
notice that in those cases, the misconducts or abuse or physical
violence took place in the work place or in the course of
employment/duty. But, in this case, the misconduct took place
far away from the work place and further, the proven misconduct
was not committed against a person or persons directly involved
in the management of the establishment. So, if the Tribunal takes
the view that for the misconduct proved in this case, the
punishment imposed is grossly disproportionate, we think, this
Court is not justified in condemning the said decision as perverse
or one which no man in his senses would take.
11. In this context, we think, it is apposite to quote the
decision of the Apex Court, interpreting the provisions of the
Constitution, dealing with the welfare of workers. The Apex
Court in U.P.State Electricity Board and another v. Hari
Shanker Jain and others (AIR 1979 SC 65) held as follows:
“4A. Before examining the rival contentions, we
remind ourselves that the Constitution has expressed a deep
WA Nos.215 & 250 of 2009 26
concern for the welfare of the workers and has provided in Art.42
that the State shall make provision for securing just and humane
conditions of work and in Art.43 that the State shall endeavour to
secure, by suitable legislation or economic organisation or in any
other way, to all workers agricultural, industrial or otherwise, work,
a living wage, conditions of work ensuring a decent standard of life
and full enjoyment of leisure etc. These are among the Directive
Principles of State Policy. The mandate of Art.37 of the Constitution
is that while the Directive Principles of State Policy shall not be
enforceable by any Court, the principles are ‘nevertheless
fundamental in the governance of the country’ and ‘it shall be the
duty of the State to apply these principles in making laws’.
Addressed to Courts, what the injunction means is that while Courts
are not free to direct the making of legislation, Courts are bound to
evolve, affirm and adopt principles of interpretation which will
further and not hinder the goals set out in the Directive Principles of
State Policy. This command of the Constitution must be ever
present in the minds of Judges when interpreting statutes which
concern themselves directly or indirectly with matters set out in the
Directive Principles of State Policy.”
The preamble of our Constitution, inter alia, declares ours as a
socialistic republic. Socialism of all hues are primarily concerned
with the welfare of the workmen and the under-privileged. In this
context, we think, it is apposite to quote the views of the Apex
Court in a very recent decision reported in Harjinder Singh v.
Punjab State Warehousing Corporation (S.C.) [2010 (124)
WA Nos.215 & 250 of 2009 27
FLR 700]. In the said decision, G.S.Singhvy, J. held as follows :
“23. Of late, there has been a visible shift in the
Courts approach in dealing with the cases involving the
interpretation of social welfare legislations. The attractive
mantras of globalization and liberalisation are fast becoming the
raison d’etre of the judicial process and an impression has been
created that the constitutional Courts are no longer sympathetic
towards the plight of industrial and unorganized workers. In large
number of cases like the present one, relief has been denied to
the employees falling in the category of workmen, who are
illegally retrenched from service by creating by-lanes and side-
lanes in the jurisprudence developed by this Court in three
decades.
x x x x x x x x x x
x x x x x x x x x x
It need no emphasis that if a man is deprived of his livelihood, he
is deprived of all his fundamental and constitutional rights and for
him the goal of social and economic justice, equality of status and
of opportunity, the freedoms enshrined in the Constitution remain
illusory. Therefore, the approach of the Courts must be
compatible with the constitutional philosophy of which the
Directive Principles of State Policy constitute an integral part and
justice due to the workman should not be denied by entertaining
the specious and untenable grounds put forward by the employer
– public or private.”
Ashok Kumar Ganguly, J., in a concurring judgment, held as
follows :
“I entirely agree with the views expressed by my
WA Nos.215 & 250 of 2009 28
learned Brother Justice G.S.Singhvi. Having regard to the
changing judicial approach noticed by His Lordship and if I, may
say so, rightly, I may add a few words, I consider it a very
important aspect in decision making by this Court.
Judges of the last Court in the largest democracy of
the world have a duty and the basic duty is to articulate the
Constitutional goal which has found such an eloquent utterance
in the Preamble. If we look at our Preamble, which has been
recognised, a part of the Constitution in His Holiness
Kesavananda Bharati Sripadagalvaru and others v. State of
Kerala and another, we can discern that as divided, in three
parts. The first part is a declaration whereby people of India
adopted and gave to themselves the Constitution. The second
part is a resolution whereby people of India solemnly resolved to
constitute India into a sovereign, socialist, secular, democratic
republic. However, the most vital part is the promise and the
promise is to secure to all its citizens.
JUSTICE, social, economic and political; LIBERTY of
thought, expression, belief, faith and worship;
EQUALITY OF status and of opportunity
And to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity
and integrity of the Nation”
[See Justice R.C.Lahoti, Preamble-The Spirit and backbone of the
Constitution of India, Anundoram Barooah Law Lectures, Seventh
Series, Eastern Book Company, 2004, at p.3]
Judges and specially the Judges of the highest Court have
a vital role to ensure that the promise is fulfilled. If the judges
fail to discharge their duty in making an effort to make the
WA Nos.215 & 250 of 2009 29
Preambular promise a reality, they fail to uphold and abide by
the Constitution which is their oath of office. In my humble
opinion, this has to be put as high as that and should be equated
with the conscience of this Court.
As early as in 1956, in a Constitution Bench
judgment dealing with an Article 32 petition, Justice Vivian Bose,
while interpreting the Article 14 of the Constitution, posed the
following question :
“After all, for whose benefit was the Constitution
enacted?”
[Bidi Supply Co. v. Union of India and others‘, at Para 23,
pg.487]
Having posed the question, the Learned Judge answered the
same in his inimitable words and which I may quote:
“I am clear that the Constitution is not for the
exclusive benefit of Governments and States; it is not only for
lawyers and politicians and officials and those highly placed. It
also exists for the common man, for the poor and the humble,
for those who have businesses at stake, for the butcher, the
baker and the candlestick maker”. It lays down for this land a
“rule of law” as understood in the free democracies of the world.
It constitutes India into a Sovereign Democratic, Republic and
guarantees in every page rights and freedom to the individual
side by side and consistent with the overriding power of the
State to act for the common good of all.”
(Ibid, Emphasis supplied)
The essence of our Constitution was also explained by the
eminent jurist Palkhivala in the following words :
“Our Constitution is primarily shaped and moulded for the
common man. It takes no account of “the portly presence of the
potentates, goodly in girth”. It is a Constitution not meant for
WA Nos.215 & 250 of 2009 30
the ruler,
“but the ranker, the tramp of the road. The slave with the sack
on his shoulders pricked on with the goad,
The man with too weighty a burden, too weary a load.”
[N.A.Palkhivala, Our Constitution Defaced and Defiled,
MacMillan, 1974, p.29].
I am in entire agreement with the aforesaid interpretation
of the Constitution given by this Court and also by the eminent
jurist.
In this context another aspect is of some relevance and it
was pointed out by Justice Hidayatullah, as His Lordship was
then, in Naresh Shridhar Mirajkar and others v. State of
Maharastra and another. In a minority judgment, His Lordship
held that the judiciary is a State within the meaning of Article
12. [See paras 100, 101 at page 28, 29 of the report]. This
minority view of His Lordship was endorsed by Justice Mathew in
Kesavananda Bharati (supra) [at page 1949, para 1717 of the
report] and it was held that the State under Article 12 would
include the judiciary.
This was again reiterated by Justice Mathew in the
Constitution Bench judgment in the case of State of Kerala and
another v. N.M.Thomas and others, where Justice Mathew’s view
was the majority view, though given separately. At para 89,
page 515 of the report, his Lordship held that under Article 12,
‘State’ would include ‘Court’.
In view of such an authoritative pronouncement the
definition of State under Article 12 encompass the judiciary and
in Kesavananda (supra) it was held that “judicial process” is also
State action” [para 1717, pg.1949]
That being the legal position under Article 38 of the
Constitution, a duty is cast on the State, which includes the
judiciary, to secure a social order for the promotion of the
WA Nos.215 & 250 of 2009 31
welfare of the people. Article 38(1) runs as follows :
“The State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may a
social order in which justice, social, economic and political, shall
inform all the institutions of the national life”.
This is echoing the preambular promise.
Therefore, it is clearly the duty of the judiciary to promote
a social order in which justice, economic and political informs all
the institution of the national life. This was also made clear in
Kesavananda Bharati (supra) by Justice Mathew at para 1728,
p.1952 and His Lordship held that the Directive Principles
nevertheless are :
“…fundamental in the governance of the country and all
the organs of the State, including the judiciary are bound to
enforce those directives. The Fundamental Rights themselves
have no fixed content; most of them are mere empty vessels
into which each generation must pour its content in the light of
its experience.”
In view of such clear enunciation of the legal principles, I
am in clear agreement with Brother Justice Singhvi that this
Court has a duty to interpret statutes with social welfare-
benefits in such a way as to further the statutory goal and not to
frustrate it. In doing so this Court should make an effort to
protect the rights of the weaker sections of the society in view of
the clear constitutional mandate discussed above.
Thus, social justice, the very signature tune of our
Constitution and being deeply embedded in our Constitutional
ethos in a way is the arch of the Constitution which ensures
rights of the common man to be interpreted in a meaningful way
so that life can be lived with human dignity.
WA Nos.215 & 250 of 2009 32
x x x x x x x x x
x x x x x x x x x
Therefore, the Judges of this Court are not mere
phonographic recorders but are empirical social scientists and
the interpreters of the social context in which they work. That is
why it was said in Authorised Officer, Thanjavur and another v.
S.Naganatha Ayyar and others, while interpreting the Land
Reforms Act, that beneficial construction has to be given to
welfare legislation. Justice Krishna Iyer, speaking for the Court,
made it very clear that even though the Judges are
“constitutional invigilators and statutory interpreters” they
should “also be responsive to Part IV of the Constitution being
“one of the trinity of the nation’s appointed instrumentalities in
the transformation of the socio-economic order”. The learned
Judge made it very clear that when the Judges when “decode
social legislation, they must be animated by a goal oriented
approach” and the Learned Judge opined, and if I may say so,
unerringly, that in this country “the judiciary is not a mere
umpire, as some assume, but an activist catalyst in the
constitutional scheme” [para 1, p.468]
I am in entire agreement with the aforesaid view
and I share the anxiety of my Lord Brother Justice Singhvi about
a disturbing contrary trend which is discernible in recent times
and which is sought to be justified in the name of globalisation
and liberalisation of economy.
I am of the view that any attempt to dilute the
constitutional imperatives in order to promote the so called
trends of “Globalization”, may result in precarious
consequences. Reports of suicidal deaths of farmers in
thousands from all over the country along with escalation of
terrorism throw dangerous signal.
WA Nos.215 & 250 of 2009 33
x x x x x x x x x x
x x x x x x x x x x
At this critical juncture the Judges’ duty, to my mind, is to
uphold the constitutional focus on social justice without being in
any way mislead by the glitz and glare of globalization.”
The above views of the learned Judges illumine our path. But, the
learned counsel for the management tried to distinguish this
decision on facts. But, we think there is no precedent on facts.
The principles laid down in the above quoted decision bind us as a
precedent. If the view canvassed by the learned counsel is
accepted, the decisions of the Apex Court, relied on by the
learned Single Judge can be distinguished by saying that none of
the cases involved man-handling the near relatives of the
management. But, we are not venturing to do that, as we are
bound by the principles laid down therein. As noticed earlier, the
principle laid down in those decisions is that the Tribunal could
interfere with the punishment, if only it is shockingly
disproportionate to the gravity of the offence. We are of the
opinion that the plausible view taken by the Tribunal that the
punishment is grossly disproportionate to the gravity of the
offence, cannot be unsettled, invoking the power of this Court
WA Nos.215 & 250 of 2009 34
under Article 226 of the Constitution of India, as this Court is not
constituted as an Appellate Court under that Article.
In the result, W.A.215 of 2009 is allowed. The
judgment under appeal is reversed and the Writ Petition is
dismissed. In view of this judgment, we cannot grant the relief
sought by the workman for back wages. Therefore, W.A.250 of
2009 is closed. No costs.
K.BALAKRISHNAN NAIR, JUDGE.
P.N.RAVINDRAN, JUDGE.
tgs
K.BALAKRISHNAN NAIR &
P.N.RAVINDRAN, JJ.
———————————————-
W.A. Nos.215 & 250 of 2009
———————————————-
J U D G M E N T
Dated 3rd March, 2010.