JUDGMENT
S. Palanivelu, J.
1. These appeals are directed against the Common Order passed in Writ petition Nos. 5266 of 1994 and W.P. No. 11554 of 1997 passed by the learned Single Judge of this Court, dated 19.07.2001, by means of which the award of the Second Additional Labour Court, Madras in Industrial Dispute No. 377 of 1988 dated 20.10.1993 faced dismissal.
Factual background of the matter goes thus:
2. The appellant herein was posted in the Technical Division on 01.02.1982 in the second respondent Management. Thereafter, he was promoted as Mechanical Engineer and placed in Urea plant at Tuticorin. He was transferred as such to Madras on 27.06.1986. He was directed by the Management to attend duty at Managuru in Khammam District of Andhrapradesh. Along with him, the Project Manager Sherfudeen and another by name Muthaiah were also asked to report for duty on 22.12.1986 for erection of a machine. It is stated by the appellant that on account of his indisposition, he was unable to report for the duty and attend the office from 12.12.1986 to 16.12.1986 and he conveyed the message through his co-employees Palani and Kanagaraj to the Management and that he joined duty on 17.12.1986, producing a medical certificate. A charge sheet was slapped on him, stating that he had been on leave without permission which was a misconduct under Standing Order No. 110. He was also directed to show cause as to why action should not be taken against him. On 19.12.1986 he submitted his explanation narrating the above said facts for his absence. Then he reported for duty at Managuru in the afternoon on 24.12.1986. 25.12.1986 was a holiday on account of Christmas and hence he did not appear for duty. He attended the work on 26.12.1986. The charge sheet contained the following three charges as transpired from the Enquiry Report:
i) He took leave from 12.12.1986 to 16.12.1986 without permission.
ii) He joined duty at Managuru belatedly on 24.12.1986.
iii) He did not attend even small works, that he behaved in an unbecoming manner with his superior officers and against the wishes of the management and that he left the work spot at 4.30 p.m., which are misconducts as per management’s Standing Orders 104, 105 and 114.
He submitted his explanation on 24.01.1987 repudiating the charges. The management was not satisfied with the explanation and directed for domestic enquiry which was held between 12.02.1987 and 19.03.1987. The Enquiry Officer filed his report on 23.04.1997 opining that the charges were proved against the delinquent. Acting upon the enquiry report, the management, on 11.05.1987, terminated the appellant from the services.
3. Against the decision of the Management, the appellant preferred an appeal before the Vice Chairman and President of the Corporation which suffered dismissal. Then, he filed a petition under Section 2A or industrial Dispute Act against the said order before the Labour Officer and since the conciliation did not bring about desired result, he raised an Industrial Dispute in I.D. No. 377 of 1988 before the Second Additional Labour Court at Madras, in which an award was passed by the learned Presiding Officer of the said Court, on 20.10.1993, considering the fact that the charges were proved, denying 50% of the back wages and ordering reinstatement of the appellant with 50% back wages for the period of non-employment with continuity of service and all other attendant benefits.
4. Aggrieved of the Award aforesaid, the Management preferred the Writ petition before this Court and writ petition filed by Management was allowed by the learned single Judge, while the writ petition filed by the employee was dismissed. Therefore, the workman has preferred both these appeals.
5. With regard to the charges levelled against the appellant, the Labour Court has meticulously gone through the materials on record and found that the report of the Enquiry Officer, finding proof of charges, is quite justified.
6. The learned Presiding Officer of the Labour Court has also observed that there is no need to dislodge or upset the findings of the Enquiry Officer. The learned Single Judge of this Court has also found that the consideration made by the Presiding Officer of Labour Court was proper.
7. Coming to the proportionality of the punishment awarded by the Management, this Court finds that intervention in the order of the learned single Judge has become inevitable. The termination order issued by the Management dated 11.05.1987 does not disclose whether any representation was received from the present appellant on service of the enquiry report and whether it was considered before passing the said proceedings. It transpires from the application for conciliation of proceedings before the Labour Officer dated 23.11.1997 and the claim statement before the Labour Court filed by the appellant that no such representation was called for from him with service of enquiry report, before inflicting the penalty on him. Hence, at the end of the proceedings undertaken by the Management, the principles of natural justice have been violated. It is also stated by the appellant that by a single line order, his appeal faced dismissal at the hands of Vice Chairman.
8. The mainstay of the appellant in these appeals is that the Labour Court has lawfully considered the matter and has judiciously exercised its jurisdiction under Section 11A of the Industrial Disputes Act 1947 and passed the award for his reinstatement into service awarding 50% of backwages with continuity of service and other attendant benefits. Of course, he is assailing a part of the award of refusal of granting remaining 50% of backwages. He challenges the common order of the learned Single Judge of this Court whereby the claim of the appellant was rejected in toto.
9. With regard to the exercise of power by the Labour Court under Section 11A of Industrial Dispute Act 1947, the learned Counsel for the appellant vehemently argued that the learned single Judge should have confirmed the part of the award of the Labour Court extending benefits to the appellant and allowed remaining 50% backwages to him. He referred to an earlier decision of the Honourable Supreme Court in The Workmen of Firestone Tyre and Rupper Co. of India (Pvt) Ltd. v. The Management and Ors. etc. , in which a batch of Writ petitions were disposed, with a finding, at para No. 34, that the proviso to Section 11A of Industrial Dispute Act only emphasizes that the Tribunal has to satisfy itself one way or other regarding misconduct relying only on the “material on record” before it.
10. He also placed reliance upon the following decisions of the Honourable Supreme Court, in which the scope of Section 11A of Industrial Dispute Act has been discussed. In Hindustan Machine Tools Limited, Bangalore v. Mohd. Usman and Anr. 1983-II-LLJ 386, the three Judges Bench of the Hon’ble Apex Court, had an occasion to consider the power of Labour Court to evaluate the severity of misconduct and proportionality of the punishment imposed by the employer. The operative portion of the Judgment is culled out, which is as under:
Section 11A confers Power on the Labour Court to evaluate the severity of misconduct and to assess whether punishment imposed by the employer is commensurate with the gravity of misconduct. This power is specifically conferred on the Labour Court under Section 11A. If the Labour Court after evaluating the gravity of misconduct held that punishment of termination of service is disproportionately heavy in relation to misconduct and exercised its discretion, this Court, in the absence of any important legal principle, would not undertake to re-examine the question of adequacy or inadequacy of material for interference by Labour Court. We are, therefore, disinclined to interfere with the order passed by the Labour Court.
The Hon’ble Apex Court has formulated a principle that Section 11A has conferred power on the Labour Court to evaluate the gravity of the misconduct and propriety of the management for awarding punishment for the proven charges. The learned Counsel for the appellant while citing the above noted decision, would argue strenuously that the Labour Court is quite competent to re-appreciate the materials on record which were considered by the Enquiry Officer and to consider whether the finding was proper and also to enter into the decision of the Management, with regard to the proportionality of the punishment and if it was shocking, the Labour Court can very well mould the relief available to the workman. He also placed reliance upon subsequent decisions of Hon’ble Supreme Court which would show that these principles are well nigh settled, holding the field for decades.
11. The learned Counsel for the appellant also garners support from some more decisions of the Hon’ble Supreme Court, in which the scope of the powers conferred on Labour Court by virtue of Section 11A of Industrial Dispute Act has been highlighted. In Depot Manager, A.P.S.R.T.C. v. A.M. Goud(dead) by Lrs and Ors. 2001(2) LLJ 391 and Depot Manager, APSRTC v. Syed Khaja and Anr. 2002 (3) LLJ 717, Full Bench of the Supreme Court has observed that while the matter is taken up for consideration, the Courts should be slow to upset the discretion exercised by the Labour Court or Industrial Court under Section 11A of the Act.
12. The principles as laid down by the Supreme Court in Depot Manager, A.P.S.R.T.C. v. A.M. Goud(dead) by Lrs and Ors. 2001(2) LLJ 391 are as follows:
On the basis of this material the Labour Court came to the conclusion that there was rashness and negligence on the part of the said employee. So far as punishment to be imposed upon the employe, has past history was taken into consideration which revealed that he caused an accident on an earlier occasion also resulting in death of some persons. In these circumstances the Labour Court exercised its discretion and converted the order of removal into one of compulsory retirement and directed payment of terminal benefits.
In Depot Manager, APSRTC v. Syed Khaja and Anr. 2002 (3) LLJ 717, the Supreme Court has held as follows:
It is trite that the Industrial Court while dealing with appropriate punishment that may be imposed on the delinquent having regard to the gravity of misconduct had taken into account all the attendant circumstances and that is the reason why the Industrial Court has denied 50% of the back wages to the delinquent workman and otherwise in normal course till back wages would follow the relief of reinstatement. Be that as it may, the Courts under Article 226 of the Constitution should be very slow to upset the discretion exercised by the Industrial Court under Section 11A of the Act.
13. Guided by the cardinal principles as stated above, this Court comes to a conclusion that the Labour Court could very well exercise its discretion to analyse whether the punishment awarded was commensurate to the gravity of the charges.
14. The learned Counsel appearing for the Second respondent/Management placed much reliance upon the decisions of the Supreme Court and argued that though it appears that power to exercise discretion emanates from Section 11A of the Act, still there is legal fetter on the power of the Labour Court to exercise its discretion with regard to awarding of back wages, continuity of service and other attendant benefits. For these propositions of law, he cites an authority of the Hon’ble Supreme Court in J.K. Synthetics Ltd v. K.P. Agarwal and Anr. in which the operative portion is as follows:
Para 19. Therefore, where reinstatement is a consequence of imposition of a lesser punishment neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In case where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, any amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotion.
Para 20: But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc., will be the same as those applied in the case of an illegal termination.
15. The Hon’ble Apex Court, has observed that even though reinstatement is a consequential benefit arising from imposition of lesser punishment, awarding of back wages and other benefits need not necessarily follow the reinstatement and if the benefits of continuity of service was directed, it should be for purposes of pensionary and retirement benefits alone. The Honourable Supreme Court has also given two exceptions for this proposition of law. One is on the point of finding not guilty of the misconduct and another is proof of misconduct of trivial nature, which was supposed to victimise the employee, resulting in excessive or disproportionate punishment. If the matter falls under Second exception, the principles relatable to awarding back wages and other benefits, would be the same as the punishment was the out come of an illegal termination.
16. The facts of the present case can easily be brought within the ambit of the second exception formulated by the Supreme Court aforementioned. In the case on hand, even though the charges are proved, this Court does not consider it so grave to call for a punishment of termination from service. It is reiterated that the unauthorised absence of the appellant was for about five days alone i.e., from 12.12.1986 to 16.12.1986, delayed reporting for duty on 24.12.1986 and disobedience of the instructions and reasonable orders issued by superiors and behaving in manner, which is detrimental to the interest and prestige of the Management. As far as first charge is concerned, as already stated, it is unauthorised absence for five days alone. In so far as second and third charges are concerned, they are very vague and the charges do not contain required particulars. This analysis is undertaken here to find out whether the charges cover frivolous issue of petty misconduct as observed by the Supreme Court. In the opinion of this Court, for the proof of the above charges on petty misconduct, awarding major penalty of termination from service could not be countenanced, as per the dictum of the Supreme Court.
17. The next limb of contention of the learned Counsel for the second respondent/Management is, there is no need to narrate the past conduct or the workman in the Departmental proceedings. As a reply to the learned Counsel for the appellant, he submitted this point and invited the attention of this Court to a decision of Supreme Court in A.P.SRTC v. Raghuda Siva Sankara Prasad , the Supreme Court has held as follows:
Past Conduct of Workman is not relevant in departmental proceedings. The Single Judge has erred in holding that since the workman was not involved in any misconduct of theft during his past services and on that ground wrongly granted reinstatement with continuity of service.
18. Learned Counsel for the Management further submitted that even though the termination proceedings passed by the Management is bereft of the particulars as regards past conduct of the appellant, it does not suffer from any illegality.
19. We have heard both sides with rapt attention, and followed the propositions of law laid down by the Supreme Court. Which will lead us to the only irresistible conclusion that the Labour Court can very well exercise its discretionary power on the proportionality of the punishment, if the same is found to be shockingly disproportionate. The Labour Court, in this case has properly reappreciated the materials on record and passed an award for reinstatement with 50% of back wages, continuity of service and other attendant benefits as well. As for the refusal to grant of 50% of the back wages to the appellant, the Labour Court has arrived at a correct conclusion. Hence interference with the award of the Labour Court is not at all warranted. The order of the learned Single Judge is liable to be set aside and the award of the Labour Court is entitled to be restored.
20. In fine, Writ Appeal No. 1932 of 2001 is allowed. The order passed by the learned Single Judge is set aside and the award of the Second Additional Labour Court, Madras in I.D. No. 377 of 1988 is restored. Consequently, writ appeal No. 1933 of 2001 is dismissed. No costs.