IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 5049 of 2003(A)
1. M/S.TATA TEA LIMITED, MUNNAR
... Petitioner
Vs
1. THE GENERAL SECRETARY,
... Respondent
2. INDUSTRIAL TRIBUNAL, IDUKKI.
For Petitioner :SRI.ANTONY DOMINIC
For Respondent :SRI.A.JAYASANKAR
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :12/01/2007
O R D E R
S. Siri Jagan, J.
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O.P. No. 5049 of 2003
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Dated this, the 12th January, 2007.
J U D G M E N T
Petitioner is the management in I.D.No.113/1999 before the
Industrial Tribunal, Idukki. The issue referred for adjudication was:
“Whether the dismissal of Smt. Mary, No. 2311 is
justifiable? If not, what relief she is entitled to?”
2. Smt. Mary was dismissed from service on allegations of
misconduct, after conducting a domestic enquiry. The allegation in
the charge sheet was that she had used filthy language against the
Management Assistant, Field Assistant, Field Officer and the
Company Supervisor, obstructed the officers of the management when
they were doing fencing in the company’s area, damaged the fixed
fencing stone posts/barbed wire and threatened them with knife and
stones on 11-7-1998 at about 5 p.m. In the domestic enquiry, the said
workman was found guilty. Since the dismissal was after a domestic
enquiry, the Tribunal considered the question of validity of the
enquiry as a preliminary point and found that the enquiry was
conducted properly in compliance with the principles of natural
justice. Thereafter, the Tribunal considered the evidence in the
enquiry and found that the findings of the enquiry officer is correct
and sustainable. Thereafter, the Tribunal entered a finding that it has
come out in evidence that along with the workman, her husband and
son had obstructed the fencing of the boundary and there is only little
connection with respect to the misconduct proved against the
workman and her employment under the management. On that
reasoning, the Tribunal came to the conclusion that the punishment of
dismissal awarded to the workman is too harsh and directed the
management to treat the workman as retrenched with effect from the
date of the award and pay her backwages till the date of the award
with retrenchment compensation and gratuity. The petitioner
O.P. No 5049/2003. -: 2 :-
-management is challenging the award to the extent it set aside the
punishment imposed by the management.
3. The contention of the petitioner is that once the Tribunal
finds that the finding of the enquiry officer was correct and
sustainable, that automatically means that the finding on the
misconduct is accepted by the Tribunal. After accepting that the
workman was guilty of the misconduct alleged against her, according
to counsel for the petitioner, the Tribunal could not have again re-
appreciated the evidence to come to a different conclusion that the
misconduct had little connection with the employment of the workman
under the management. He would submit that if the misconduct did
not have any connection with the employment under the management,
then it would not be a misconduct at all. Since the Tribunal had
earlier found that the misconduct has been proved, such further
finding would be totally perverse and on that finding, the Tribunal
could not have altered the punishment imposed by the management
on the workman.
4. On the other hand, learned counsel for the 1st respondent
-Union would vehemently support the award. According to him,
although the Tribunal has entered the finding that the misconduct
has been proved, the Tribunal was certainly justified in taking into
account the fact that the whole incident occurred pursuant to a
boundary dispute between the officers of the management and the
husband of the workman. The husband of the workman, the workman
and her son were only trying to defend their own property and in the
heat of the moment, she may have said something in their attempt to
protect their property, which cannot be termed to be any misconduct
at all, is the contention raised by the counsel for the 1st respondent-
Union. On that contention, counsel would submit that no interference
is called for to the impugned award.
O.P. No 5049/2003. -: 3 :-
5. I have considered the rival contentions in detail.
6. I am unable to subscribe either to the view taken by the
Tribunal or the arguments of the learned counsel for the 1st
respondent-Union. First of all, after finding that the misconduct has
been proved in the enquiry, the Tribunal had no business to again re-
appreciate the evidence and come to the conclusion that the
misconduct had little connection with her employment under the
management. If the misconduct did not have any connection with the
employment under the management, then it would not be a
misconduct at all. On the other hand, the Tribunal had already found
that it is a misconduct. That being so, the further finding of the
Tribunal that there was little connection between the misconduct
proved and her employment under the management is totally
perverse.
7. Secondly, I am unable to countenance the contention of the
1st respondent that the misconduct had no connection with the
employment under the management. No doubt, it was a property
dispute. But the property dispute was between the company, which is
the employer of the workman and the husband of the workman. The
officers of the management were actually trying to protect the
property of the management under whom the workman was working.
Therefore, in fact, the workman was obstructing the action of the
officers of the Company in the course of their duties. When a
workman of the Company obstructs the officers of the Company while
exercising their duties as employees of the Company, the misconduct
committed by the workman certainly does have connection with the
employment under the management.
8. Now, I shall deal with the question of validity of the
interference made by the Tribunal on the punishment imposed by the
management. The misconduct found against the workman is that she
O.P. No 5049/2003. -: 4 :-
used filthy language against the officers of the Company, obstructed
the officers of the management when they were doing fencing in the
Company area, damaged the fencing stones posts/barbed wire and
threatened them with knife and stones. Till some time ago, the views
of the Courts were loaded heavily in favour of the workmen on the
ground that they were at the weaker end in terms of bargaining
power. But, of late, the view has changed. The courts especially the
Supreme Court are increasingly in favour of maintaining strict
discipline in employment. Some of the latest decisions on the point
have been referred to by a Division Bench of this Court in the
decision of Cochin Shipyard Ltd. v. Industrial Tribunal, reported in
2006(4) LLN 939. In that decision, in paragraph 5, referring to the
Supreme Court decision in Mahindra and Mahindra Ltd. v. N.B.
Narawade, [2005 (1) LLN 1074], the Division Bench observed as
follows:
“5. In Mahindra and Mahindra Ltd., v. N.B. Narawade [2005
(1) LLN 1074], the Apex Court observed as follows, in Para. 14, at
pages 1079 and 1080:
“It is no doubt true that after introduction of S. 11A in
the Industrial Disputes Act, certain amount of discretion is
vested with the Labour Court/Industrial Tribunal in interfering
with the quantum of punishment awarded by the management
where the concerned workman is found guilty of misconduct.
The said area of discretion has been very well defined boy the
various judgments of this Court referred to hereinabove and it
is certainly not unlimited as has been observed by the Division
Bench of the High Court. The discretion which can be
exercised under S.11A is available only on the existence of
certain factors like punishment being disproportionate to the
gravity of misconduct so as to disturb the conscience of the
Court, or the existence of any mitigating circumstances which
requires the reduction of the sentence, or the past conduct of
the workman which may persuade the Labour Court to reduce
the punishment. In the absence of any such factor existing,
the Labour Court cannot by way of sympathy alone exercise
the power under S.11A of the Act and reduce the
punishment. . . . . .”
In that case, the workman was found guilty of assaulting superior.
The Labour Court, Single Bench and Division Bench interfered in
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the matter and directed reinstatement. The Supreme Court quashed
the same holding that power of the Labour Court under S. 11A is
limited. It also followed its earlier decision in Orissa Cement, Ltd. v.
Adikanda Sahu [1969 – I L.L.J. 518], and New Shrrock Mills v.
Maheshbhai T. Rao [1997 (1) L.L.N. 69]. In those cases, the Labour
Court interfered in the matter as only abusive language was used
against the superior. The Apex Court held that punishment of
dismissal for use of abusive language against the superior officer in
the presence of others cannot be termed to be a punishment
shockingly disproportionate warranting interference under S. 11A.”
Later on, in paragraph 6, the Division Bench again extracted another
decision of the Supreme Court as under:
” . . . . . In Uttar Pradesh State Road Transport Corporation v.
Subhash Chandra Sharma and others, [2000 (2) L.L.N. 402], this
Court, after referring to the scope of interference with punishment
under S. 11A of the Industrial Disputes Act , held that the Labour
Court was not justified in interfering with the order of removal from
service when the charge against the employee stood proved. It was
also held that the jurisdiction vested with the Labour Court to
interfere with punishment was not to be exercised capriciously and
arbitrarily. It was necessary, in a case where the Labour Court finds
the charge proved, for a conclusion to be arrived that the
punishment was shockingly disproportionate to the nature of the
charge found proved, before it could interfere to reduce the
punishment. . . . . .”
The Division Bench also noted the following observation of the
Supreme Court in the case of Life Insurance Corporation of India v. R.
Dhandapani, [2006 (1) L.L.N. 491]:
“In recent times, there is an increasing evidence of this,
perhaps well meant but wholly unsustainable, tendency towards a
denudation of the legitimacy of judicial reasoning and process. The
reliefs granted by the Courts must be seen to be logical and tenable
within the framework of the law and should not incur and justify the
criticism that the jurisdiction of the Courts tends to degenerate into
misplaced sympathy, generosity and private benevolence. It is
essential to maintain the integrity of legal reasoning and the
legitimacy of the conclusions. They must emanate logically from the
legal findings and the judicial results must be seen to be principled
and supportable on those findings. Expensive judicial mood of
mistaken and misplaced compassion at the expense of the legitimacy
of the process will eventually lead to mutually irreconcilable
situations and denude the judicial process of its dignity, authority,
predictability and respectability. . . . .”
As such, stress has changed from an attitude totally favourable to the
workman to that of maintaining discipline among workmen in
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industries.
9. In another decision of the Supreme Court in L.K. Verma v.
HMT Ltd. and another, [(2006) 2 SCC 269], in paragraph 22, the
Supreme Court held thus:
“22. So far as the contention as regards quantum of
punishment is concerned, suffice it to say that verbal abuse has been
held to be sufficient for inflicting a punishment of dismissal.”
In that decision, the Supreme Court also quoted with approval the
following paragraph from the decision of Hombe Gowda Edn. Trust v.
State of Karnataka, (2006) 1SCC 430:
“30. This Court has come a long way from its earlier view
points. The recent trends in the decisions of this Court seek to strike
a balance between the earlier approach of the industrial relation
wherein only the interest of the workmen was sought to be protected
with the avowed object of fast industrial growth of the country. In
several decisions of this Court it has been noticed how discipline at
the workplace/industrial undertakings received a set back. In view of
the change in economic policy of the country, it may not now be
proper to allow the employees to break the discipline with impunity.
Our country is governed by rule of law. All actions, therefore, must
be taken in accordance with law. Law declared by this Court in
terms of Article 141 of the Constitution, as noticed in the decisions
noticed supra, categorically demonstrates that the Tribunal would
not normally interfere with the quantum of punishment imposed by
the employers unless an appropriate case is made out therefor. The
Tribunal being inferior to this Court was bound to follow the
decisions of this Court which are applicable to the facts of the
present case in question. The Tribunal can neither ignore the ratio
laid down by this Court nor refuse to follow the same.”
10. Another decision which was bearing on the point is the
decision of M/s. Tata Engineering and Locomotive Company Limited v.
N.K. Singh, reported in 2006 AIR SCW 6214, paragraph 10 of which
reads as follows:
“10. We find that the Labour Court has found the inquiry to be
fair and proper. The conduct highlighted by the management and
established in inquiry was certainly of very grave nature. The Labour
Court and the High Court have not found that misconduct was of any
minor nature. On the contrary, the finding on facts that the acts
complained of were established has not been disturbed. That being
so, the leniency shown by the Labour Court is clearly unwarranted
and would in fact encourage indiscipline. Without indicating any
reasons as to why it was felt that the punishment was
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disproportionate, the Labour Court should not have passed the order
in the manner done. The case of R.P. Singh was not on a similar
footing. He was one of the persons instigating whereas the
respondent was the person who committed the acts. Therefore the
order of the Labour Court as affirmed by the High Court cannot be
sustained and are set aside. The order of dismissal from service as
passed by the Labour Court in the disciplinary proceedings stand
restored.”
These judgments would definitely support the argument of the learned
counsel for the petitioner-management that even verbal abuse of
superiors has been considered by the Supreme Court as grave enough
to warrant the punishment of dismissal and the Tribunal should not,
as a matter of course, interfere with the punishment imposed by the
management without a specific finding to the effect that the
punishment was shockingly disproportionate to the nature of the
charge found proved, under Section 11A. Keeping in view the nature
of the misconduct proved against the workman in this case, as
mentioned above, I am of opinion that the Tribunal was wrong in at
least directing payment of backwages to the workman. I am even
inclined to think that the Tribunal is wrong in interfering with the
punishment imposed by the management at all. But, taking a lenient
view, I modify the award deleting the direction to pay backwages to
the workman but retaining the other relief directing the management
to treat the workman as retrenched with effect from the date of the
award and to pay retrenchment compensation and gratuity purely as a
matter of sympathy. The original petition is allowed as above.
Sd/- S. Siri Jagan, Judge.
Tds/