JUDGMENT
Ms. Prabha Sridevan, J.
1. The writ petitioner, an employee of the respondent raised an industrial dispute relating to his non-employment which resulted in an Award passed in the workman’s favour on March 7, 1983. Against this, the management filed Writ Petition No. 6861 of 1983, which was allowed by the learned single Judge. The workman has therefore filed the present writ appeal.
2. The facts are as follows: –
The appellant, an employee in the Core Shops of the first respondent company was charged of various acts of misconduct by a show cause notice dated April 15, 1981. Two charges were framed against the writ appellant:
1. Use of disrespectful and abusive language.
2. Intimidation of senior officials.
3. The appellant sent his reply on April 18, 1981 denying the charges and stating that the management was deliberately adopting a vindictive attitude.
4. An enquiry was conducted, where the Enquiry Officer examined the Supervisor and a co-worker on the side of the Management. The appellant did not let in any oral evidence, on his behalf. Considering the circumstances and the evidence before him, the Enquiry Officer found the appellant guilty of misconduct. Thereupon on May 28, 1981, the first respondent terminated the services of the appellant, since he was found guilty of the two charges. The two acts of which he had been charged constituted serious misconduct as per the first respondent’s Standing Orders and therefore, the first respondent, after considering his previous record came to the conclusion that there were no extenuating circumstances in favour of the appellant.
5. Against this order, the appellant raised an industrial dispute and I.D. No. 79 of 1982 was heard by the second respondent. In the claim statement the appellant stated that the charges were not true, that he was the President of the “Kovai Mavatta Podhu Thozhilalar Munnetra Sangam” and the Management deliberately sought to victimise the appellant
for trade union activities. The appellant said that the complaint itself was false and M.W. 2 who gave evidence in the domestic enquiry was a member of the rival trade union and therefore gave false evidence against the petitioner.
6. The appellant also stated that fair opportunity was not given in the domestic enquiry and that the order of dismissal was -disproportionate to the charges levelled and’ was also against the principles of natural justice and therefore had to be set-aside.
7. To this, the first respondent filed a
counter stating that the domestic enquiry was
conducted fairly and in accordance with law
and that the appellant had used abusive
language and behaved in a manner subversive
of discipline, which amounted to misconduct.
The first respondent also stated that it had taken
into account the previous record of the
petitioner while inflicting the punishment. It
denied any victimisation and stated that the
punishment awarded was commensurate with
the gravity of the misconduct.
8. The first respondent further said that absolutely, no ground has been made out for setting aside the order of dismissal. To this, the appellant filed a reply repeating his denial and also denying that there were no previous punishments as referred in the counter. In the reply, he again repeated that the enquiry was one sided and the enquiry officer lacked bona fide.
9. Forty three documents were marked on the side of the first respondent. The Presiding Officer, Labour Court, Coimbatore, viz., the second respondent herein considered all the documents, the enquiry proceedings, the pleadings and the arguments of both counsel passed the impugned award (sic) on January 18, 1983.
10. Before the Labour Court the appellant raised the preliminary objection that the enquiry was not conducted in accordance with the principles of natural justice and an opportunity ought to be given to the appellant to lead evidence. The second respondent viz, the Presiding Officer of the Labour Court overruled the preliminary objection stating that the denial of opportunity to examine the witness was not raised in the claim statement. He also noted that the appellant himself had stated to the Enquiry Officer that there are no witnesses on his side,
11. The other preliminary objection raised by the appellant is that the show cause notice does not state the correct provision of the Standing Order, under which the appellant had been charged. This objection was also overruled on the ground that the appellant had not sought any clarification from the management as to the exact provision of the Standing Order, under which he was charged. Therefore, the Labour Court held that the enquiry had been conducted fairly and in accordance with law,
12. Thereafter while deciding the question as to whether the charges levelled against the appellant have been proved the Labour Court held that, “it cannot be said that the finding of the Enquiry Officer is not based on evidence.” Therefore, the misconduct was also held to be proved. Thereafter, the Labour Court proceeded to consider the various exhibits from Ex. M-15 to Ex. M-30 for the period from 1975 to 1981, which are all warnings issued to the appellant on complaints given by other employees. The Labour Court held that, since no enquiry was conducted in respect of these acts, for which the appellant had been warned against, they could not be taken into account as past record for the purpose of imposing punishment. The Labour Court relied on the decisions reported in Rama Kant Misra v. The State of U.P. and Ors. and Sri Ganeskwar Aluminium Factory v. Industrial Tribunal, Madras and Anr. (1982-I-LLJ-159) (Mad) and came to the conclusion that when misconduct consists of indiscreet language it may show lack of culture, but when it is not preceded by blameworthy conduct, the extreme penalty of dismissal from service cannot be permitted. Therefore, the Labour Court directed the Management to reinstate the appellant with continuity of service, but without backwages. Against this, the Management filed the writ petition.
13. The learned single Judge has considered the question as to how far this Hon’ble Court can interfere with the order passed under Section 11-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). While bearing in mind that the power exercised under the aforesaid section cannot be interfered with lightly in the absence of any important legal principles the learned Judge has examined the award to see if the conclusion of the Labour Court is perverse. As stated earlier, the Labour Court held that misconduct has been proved. The only reason why the Labour Court set aside the order of termination was because in the opinion of the Labour Court, the numerous warnings cannot be considered as bad record, since warning is not mentioned as one of the punishments in the Standing Orders.
14. It is necessary to extract the relevant Standing Orders.
20. Punishment for Misconduct: (a) A workman may be fined upto 2% of his wages in a month for acts and omissions notified by the employer in pursuance of Section 8 of the Payment of Wages Act, 1936,
(b) A workman may on a charge of misconduct supported by the satisfactory evidence recorded at an enquiry held for the purpose.
(i) be suspended for a period not exceeding 30 days.
(ii) be punished by withholding his increment or by demoting him to a lower post; and
(iii) be dismissed from service; provided such workman shall not be entitled to any notice or any compensation in lieu of such notice.
(c) In awarding punishment under the Standing Order, the employer shall take into account the gravity of the misconduct, the previous record if any of the workman and any other extenuating or aggravating circumstances that may exist.
(d)…..
(e)…..
21-A. Where disciplinary proceedings against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are in progress and the employer is satisfied that it is necessary or desirable to place the workman under suspension, he may by order in writing be suspended with effect from such date as may be specified in the order. A statement setting out in detail the reason for such suspension shall be supplied to the workman within a week from the date of suspension.
(c) If on the conclusion of the enquiry, or as the case may be, of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered, after giving the workman concerned a reasonable opportunity of making representation of the penalty proposed that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the employer shall pass an order accordingly.
Provided that when an order of dismissal is passed under this clause, the workman shall be deemed to have been absent from duty during the period of suspension and shall not be entitled to any remuneration for such period and the subsistence allowance already paid to him shall not be recovered.
15. The learned single Judge, held that the Labour Court had erred in thinking that only where past misconduct has resulted in domestic enquiry and punishment, it would amount to bad past record.
16. It is seen from the Labour Court’s award that several exhibits were marked, which were all warnings issued to the petitioner on the complaints given by the other workers. The acts complained of were inter alia, insubordination, use of abusive language, misbehaviour, absenteeism and deliberate low production. The various notices, which were all warnings have been clearly set out in the
counter statement of the respondent before the Labour Court, along with the dates and details of each of these acts. In fact from the reading of the order of the learned single Judge, it is seen that the arguments of both the counsel has in fact centred around the construction by the Labour Court of the expression ‘past record’, Standing Order 20 states that while awarding punishment the employer shall bear in mind the gravity of the misconduct, the previous record and extenuating or aggravating circumstances. The impugned order dated May 28, 1981 specifically states that the gravity of the misconduct, previous record were both kept in mind. The relevant phrases are extracted below:
(Vernacular matter Omitted).
The learned Judge held that impugned order is in total conformity with Standing Order 20-C. Before the Labour Court, all these warnings were marked as exhibits. The respondent had opportunity to demonstrate before the Labour Court that the warnings were erroneously issued or the warnings were concocted or any other contra evidence that was available to him, but he had not in any way taken exception to these exhibits.
17. The learned Judge referring to this reasoning of the Labour Court noted that the appellant had not objected to the contents of the various exhibits referred to above. The learned Judge also held that previous misconduct need not necessarily mean misconduct that had culminated in a domestic enquiry followed by punishment or otherwise. The previous record according to the learned single Judge would mean past misconduct and not necessarily punishment awarded. Various authorities were cited before the learned Judge in particular Workmen of Tanganagaon Tea Estate v. Management of Tanganagaon Tea Estate and Ors., (1987-II-LLJ-491) (Gau). The observation of Guwahati High Court was (1987-II-LLJ-491 at 496):
“14. As regards antecedents, unless the workman was earlier punished after disciplinary enquiry, no inference of guilt could be normally drawn.”
To this the learned Judge would say that the decision referred to a normal situation but from the various exhibits filed before the Labour Court, the appellant’s case was an abnormal case and the Labour Court having found that the employee was guilty, there was no question or necessity to infer guilt.
18. The learned single Judge has also gone through the contents of the various exhibits and had come to the conclusion that for a long period, the appellant had deliberately disobeyed the instructions of the superiors and caused monetary loss to the employer. In fact under Ex. M-32, dated April 3, 1981, the respondent/Management had told the appellant that he was being given a last chance to mend his ways.
19. The learned single Judge held that the Labour Court had clearly erred in finding that the past record was not a bad one and the decisions relied on by the counsel had no application to the case. It appears that during the course of arguments before the learned single Judge an objection was raised for the first time that since a second show cause notice was not given as per clause No. 21(A)(c) of the Standing Orders the order of termination was vitiated. To this objection, the learned single Judge held that this plea was neither taken in the original claim statement nor in the reply statement before the Labour Court and in any event, under the relevant Standing Order, what is contemplated is only a reasonable opportunity and in the absence of any plea of lack of such opportunity, this argument cannot be sustained. Therefore, on this ground also, the learned single Judge held against the appellant. Aggrieved by the order of the learned single Judge, the present writ appeal was filed.
20. The main question that was argued in this appeal was whether the failure to issue the second show cause notice was fatal to the Management’s case and whether the warnings would constitute “past record” for the purpose of awarding punishment.
21. The counsel for the appellant pointed out to Standing Order 21 (A)(c) and said that it is mandatory for the respondent management to issue a second show cause notice and therefore, there was clear violation of the provisions of the Standing Order and therefore, the order of termination cannot stand.
22. Counsel submitted that the Labour Court in a detailed order had considered the matter and come to the conclusion that the conduct of the appellant was not blameworthy as to warrant termination of service, the learned single Judge ought not to have interfered with the said award. The learned counsel for the appellant stated that it is for the Labour Court to decide whether the punishment awarded to the employee was proportionate to the misconduct proved or was unjustified in the circumstances.
23. The learned counsel for the appellant also said that the appellant is only a workman and the language that he uses or the manner in which he conducts himself will only be according to the back ground that he comes from and if such a person behaves in a manner that does not find favour with the management, that alone will not justify the conclusion of the learned single Judge that the conduct of the appellant is blame worthy.
24. The Counsel for the appellant also submitted that in the decision reported in Charles v. Additional Labour Court, Madras arid another 1994 2 LLN 181 where misconduct had resulted in dismissal on the ground of use of indiscreet and abusive language, the orders were set aside on the ground that there was no blameworthy conduct in the past on the part of the employee. Unless it was demonstrated that the Labour Court had grievously erred in its conclusion or had not exercised its power judiciously on the basis of the materials on record, the High Court, under Article 226 of the Constitution of India should not set aside the award.
25. Counsel submitted that the Labour Court’s award was perfectly justified in the circumstances of the case and that there was no warrant for interference.
26. On the contrary, the learned counsel for the respondent stated that when the High Court finds that the Labour Court has erred in its exercise of power or has failed to consider the materials on record properly or there is an error so grossly apparent on the face of the record, the High Court can and in fact should, interfere. Therefore, when the Labour Court
had erroneously held that the warnings referred to and marked as exhibits before the Labour Court, were rejected summarily as factors not amounting to blameworthy conduct to constitute past record, the learned single Judge rightly corrected the error.
27. Over a period of five years or so, the period covered by the management exhibits, which relates to the warnings, the appellant had consistently displayed subversive conduct, use of abusive language, threatening postures and wanton low production, which had been toleraated by the respondent, until in fact, on one occasion, it had issued a warning that this was the last chance. It is therefore, that, the respondent took into account all these acts of the appellant while imposing the penalty. There were no mitigating circumstances in favour of the appellant. To the grievance of the appellant that the second show cause notice was mandatory and the failure to give the same, made the enquiry illegal, it was submitted that this ground was not urgued by the appellant on any occasion before the Labour Court and that for the first time, this point was attempted to be raised before the learned single Judge, counsel also submitted that the learned single Judge had therefore rightly rejected it for the reasons stated earlier.
28. The learned single Judge had also held that if really the second show cause notice was a must, the plea would have been taken at the earliest juncture. The learned counsel therefore pointed out the pleading before the Labour Court, where in the claim statement, while there are references to, violation of principles of natural justice in the conduct of the enquiry, grievance about the second witness, as an interested witness, no reference is made to the absence of second show cause notice. In the counter statement filed by the respondent before the “Labour Court, the respondent referred to the previous record with particulars and had averred that it is only by taking into consideration, the fact that he was warned as many as twelve times in the past, that his dismissal was ordered. Even in the reply statement filed by the appellant he had neither denied the truth of these alleged warnings, nor was a complaint made that if an opportunity had
been given before imposing punishment he would have defended himself.
29. The counsel for the respondent also read out the Standing Orders and stated that it was only Standing Order 20, which was applicable to the appellant and under that there is no necessity to issue second show cause notice before awarding punishment and the only thing that is required of the employer was to keep in mind the previous record and other circumstances. He said that the Standing Order 21(A)(c) would not apply to this case. The learned counsel for the respondent would also state that, assuming without admitting, the Standing Order did indeed contemplate the second show cause notice, the appellant not having raised the ground at the earliest juncture cannot do so now and therefore, the learned single Judge had rightly set aside the award of the Labour Court.
30. The following decisions were cited by counsel for the parties.
1. Ved Prakash Gupta v. Messers Delton Cable India (P) Ltd. .
That was a case, where the appellant was dismissed from service on the ground he used abusive language resulting in the employer’s loss of confidence, the Supreme Court held; (1984-I-LLJ-546 at 551).
“11. There is nothing on record to show that any previous adverse remark against the appellant had been taken into consideration by the management for awarding the extreme penalty of dismissal from service to the appellant even if he had in fact abused in filthy language Durga Singh and S.K. Bagga. We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him and expressed its displeasure of the employer in that case, for imposing even a severe punishment for a flimsy reason.”
2. The Management of Easwaran and Sons Engineers (P) Ltd. v. III Additional Labour Court, (1997-I-LLJ-698) (Mad-DB).
This was a decision rendered by the Division Bench of this Hon’ble High Court, where the issue was whether the past record of service of the workman would be taken into account, while imposing the punishment without giving notice. Here the Division Bench refers to the decision reported in Management of M.F.L. v. P.O., I. Additional Labour Court etc., (1990-I-LLJ-298) (Mad) which was identical to the case before the learned Division Bench and quotes therefrom (1997-I-LLJ-698 at 701):
“6. When we view this question from the above angle, we cannot take exception to the opinion expressed by the learned single Judge that when there was an omission on the part of the management to put the employee on notice of the move on the part of the management to take into consideration the past record of service of the employee in the matter of imposition of the punishment, there was a violation of the principles of natural justice and the same error had crept into the thinking on the part of the Labour Court. The vitiating factor was the denial of opportunity to the employee to explain the past record of service at the appropriate time. That has nullified the resultant action.”
and therefore goes on to hold that the impugned order of punishment was vitiated, in the following words at p. 702 of LLJ:
“7. Therefore, on the second question etc. argued by Mr. Balasubramanian, we have no hesitation in holding that in this case, the past record of service having been taken into account only for the purpose of imposing the extreme penalty, the order of punishment is visited because no notice was given to the worker before taking into account the past record of service to the prejudice of the worker.”
3. Associated Cement Companies Ltd. v. T. C. Shrivastava and Anr. :
In this case, the Supreme Court considered whether the Standing Order provided for second opportunity before inflicting punishment and whether the failure to give such opportunity vitiated the penalty. The Standing Order in that case was as follows (1984-II-LLJ-105 at 109):
“7. All dismissal orders shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation. Due consideration to the gravity of the misconduct and previous record of the worker shall be given in awarding the maximum punishment. In the event of a discharge or dismissal, the worker shall be paid off within the second working day following the discharge or dismissal.”
The Supreme Court held in that case at p. 109 of LLJ:
“8. It is thus clear that neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary. This, of course, does not mean that a Standing Order may not provide for it but unless the Standing Order provides for it either expressly or by necessary implication no inquiry which is otherwise fair and valid will be vitiated by non-affording of such second opportunity.”
4. Engine Valves Ltd. v. Labour Court, Madras and Ors., (1991-I-LLJ-372) (Mad-DB):
This is a decision of the Division Bench of our Hon’ble Court, where the workman was dismissed from service and the Labour Court set aside the order on the ground, a second show cause notice ought to have been given before awarding punishment. The Division Bench has referred to the A. C. C. Ltd. case, (supra) and the decision reported in Maheswari Textiles Ltd. v. Labour Court, Madurai, (1963) 2 M.L.J. 58, both of which were identical to this case before the Division Bench. The Standing Order in that case was as follows:
“11. Standing Order No. 15(c) applicable to the present case is as follows :
15(c) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. ?”
The Division Bench held that the Standing Order in question did not contemplate the issue for tbe second show cause notice and states as follows (1991-I-LLJ-372 at 379):
“11. We are of the view that the Standing Order in question is in the nature of an enabling provisions casting an unilateral obligation on the concerned authority to take into account the previous record with no further duty or a corresponding right in favour of the employee to either insist upon the issue of a second show cause notice and an opportunity or consideration by a detailed discussion of the materials contained in such previous record. The factual reference in the order to the consideration having been made of the previous record, in our view constitutes sufficient compliance with the requirements of the Standing Order in question and the grievance made about the non-consideration of past record of service before the Labour Court as well as the learned single Judge and which found their acceptance is wholly unjustified and unwarranted.”
The Division Bench also dealt with the scope of the Section 11-A of the Industrial Disputes Act and the mode or manner of exercise of those powers.
“Having regard to the principles referred to above, we are of the view that the power and discretion conferred under Section 23-A of the Act have to be exercised judicially and that there should be sufficient indication in the order itself to the fact that the Court exercising powers under Section 11-A of the Act was aware of and alive to the norms and requirements of Section 11-A of the Act. The Court exercising powers under Section 11-A of the Act after finding the misconduct to have been proved is first obliged to advert itself to the question of necessity or desirability to interfere with the punishment imposed by the management and, if the management could not justify the punishment imposed thereafter it must consider the question as to the relief that is to be granted to the employee. In so considering the relief to be granted, the Court has an obligation to consider whether the punishment imposed is disproportionate or shockingly severe to the charges held proved and if so whether any other lesser punishment has to be imposed. A specific finding must be recorded whether it was expedient and proper to reinstate the employee or whether award of compensation in lieu of reinstatement will meet the requirements and ends of justice of the case concerned. Absence of reasons to invoke the power and interfere under provisions of Section 11-A in a particular case would render the very exercise of powers arbitrary and perverse and the order consequently would stand vitiated.”
5. Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S.S. Railway Workers Union, .
This case related to certain modifications sought to be introduced to the Standing Order of the appellant company. One of the modifications related to a second show cause notice before removing the workman. The Supreme Court holds thus:
“As regards the modification requiring a second show cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such a notice. In none of the decisions given by Courts or the Tribunals such a second show cause notice in case of removal has ever been demanded or considered necessary. The only class of cases where such a notice has been held to be necessary are those arising under Article 311. Even that has now been removed by the recent amendment of that Article. To import such a requirement from Article 311 in industrial matters does not appear to be either necessary or proper and would be equating industrial employees with civil servants. In our view, there is no justification on any principle for such equation. Besides, such a requirement would unnecessarily prolong disciplinary enquiries which in the interest of industrial peace should be disposed of in as short a time as possible.” (Management, Shahdara (Delhi) Saharanpur Light Railway Company Ltd. v.
S.S. Railway Workers Union, (supra)).
6. Thulsiram Patel’s case 1985 Lab I.C. 1393, where the Supreme Court holds thus:
“The statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered. This is in keeping with the sense of justice and fairplay. The disciplinary authority has the undoubted power, after hearing the delinquent employee and considering the circumstances of the case, to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and, therefore, it is not desirable or conducive in the interests of administration to retain such a person in service.”
7. Shankar Chakravarti v. Britannia Biscuit Co. and Anr., .
In this case, the employer alleged that he was denied the opportunity to adduce additional evidence and the Division Bench of the Calcutta High Court had held in favour of the employer. The Supreme Court allowed the appeal of the workman stating that if no request is made to adduce evidence at any stage of the proceedings, there is no duty in law to give such an opportunity and the failure to give such an opportunity will not vitiate the proceedings.
8. P. Kasilingam v. P.S.G. College of Technology .
In this case, the Supreme Court held that the High Court had exceeded its jurisdiction under Article 226 of the Constitution of India by embarking upon an enquiry into the facts stated thus (1981-I-LLJ-358 at 361):
“10. It was rightly observed in Basappa’s case that a writ of certiorari will not issue as a cloak of an appeal in disguise. It does not lie to bring up an order or decision for
re-hearing. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown.”
9. A. Vedachala Mudaliar v. The Central Road Traffic Board, Madras (1948) 1 M.L.J. 322:
This is a judgment of the Division Bench of this Hon’ble Court relating to this Court’s] jurisdiction to issue a writ of certiorari.
“It is not a good return to a rule nisi for the issue of a writ of certiorari to state that the order is justified on facts not contained in the order and the High Court cannot take notice of such facts.”
31. On a consideration of the arguments
of the learned counsels on both sides and the
decisions cited above, we see that:
Mere abusive language alone cannot justify an order of dismissal from service and that if past record is taken note of by the management, necessarily an opportunity should be given to the employee to defend himself and in the absence of such opportunity, the enquiry would get vitiated and lastly only if the Standing Orders provides for a second show cause notice before imposing punishment, that condition must necessarily be complied with. Ordinarily the employer is not required to give a second show cause notice before imposing punishment. There is no duty in law to give an opportunity which is not sought for at any stage of the proceeding. The Hon’ble Court shall not normally interfere with the award of the Labour Court, but it has the power to do so if there is a clear error of jurisdiction or there is non application of mind with regard to the materials on record. Once the tribunal is satisfied that misconduct is proved, it can interfere with the punishment imposed only if it is satisfied that the punishment is highly disproportionate to the degree of guilt.
32. In the instant case, it is a matter of record that the appellant’s act of misconduct was not a solitary one. It has been preceded by several actions in the past, for which he had been warned. These acts were wrongly rejected by the Labour Court as not amounting to past record for the
purpose of awarding punishment. This is a clear error on the part of the Labour Court and non application of mind to the contents of various exhibits. It must be noted the respondent had not objected to these exhibits. In fact the exhibits appeared to have been marked by consent and if the employee had material to show that these exhibits were concocted, he had his opportunity before the Labour Court. Not only did he not avail the opportunity, he did not even object to the respondents relying on the past record in their counter statements. His reply statement does not even refer to these warnings. If in his opinion, he was entitled to a second show cause notice, he would have definitely objected that the employer ought not to have taken these warnings into account before awarding punishment and that he should have been given an opportunity to state his case with regard to these warnings. Assuming he was entitled to the second show cause notice, he failed to take the plea at the earliest juncture.
33. The appellant had been put on notice as to what were the acts of misconduct that were referred to by the respondent to hold that he had a bad previous record, and he had not controverted or objected to even one of the exhibits or stated anything in defence regarding those occurrence. Therefore, it is clearly an after thought. The appellant is a President of a Trade Union and his claim statement shows that he is aware of all the procedural formalities to be followed in the conduct of a disciplinary enquiry and for some reason this ground of being given an opportunity before awarding punishment was not raised by him. The respondent had in fact brought to the notice of the appellant in the counter statement filed before the Labour Court, the acts of misconduct it had taken into account as previous repord for the purpose of Standing Order 20 ‘C’.
34. It is only on a consideration of the previous record of the appellant that the respondent passed order of termination. “Reasonable Opportunity” referred to in Standing Order 21 ‘A’ ‘C’ is a provision that has been made for the benefit of the workman to state the factors in his favour for reduction
of the punishment imposed. In the instant case, the appellant has not even rebutted the allegations made by the respondent in the counter statement and as stated by the learned Judge the exhibits referring to past record were marked by consent. The appellant therefore, cannot really say that prejudice was caused to him because no opportunity was given before imposing punishment. Even the Labour Court had held that the workman had a fair hearing and the disciplinary enquiry was a fair enquiry, We are unable to see in what way the appellant has been treated unfairly. The appellant, who had argued various points in his favour both in the claim statement and in the reply statement must be deemed to have waived the right to have a reasonable opportunity before punishment is imposed, assuming he had such right. Even otherwise, as stated above, he has not shown how the punishment is harsh especially when the Management has given him a fair hearing and there has been no failure of justice. To put it in other words, the appellant has not demonstrated how he has been prejudiced by the alleged lack of reasonable opportunity especially when he has not denied any of the allegations. The appellant’s case does not pass the test of prejudice.
35. The Labour Court on materials before it held that the domestic enquiry was conducted in accordance with the principles of natural justice and that there was no denial of opportunity to the appellant. The Labour Court also held that the finding of the Enquiry Officer is based on evidence and that the misconduct alleged has been proved. The Labour Court, after giving such a finding proceeds to direct reinstatement of the petitioner only on the ground that warnings will not amount to misconduct. This finding is clearly erroneous and a misconstruction of the Standing Order relating to previous record of the workman. The Standing Order merely says that the employer should take into account the gravity of the misconduct, previous records and extenuating or aggravating circumstances. The previous record need not mean that there must be domestic enquiry in the past. The previous record can only be taken to mean conduct of the appellant in the past. As the learned single Judge rightly holds, it does not mean that only when punishment has been awarded, the Management should take it to be blameworthy conduct.
36. The Labour Court erred in thinking that since warning was not one of the punishments enumerated in the Standing Orders that cannot be described as past record.
37. A perusal of the particulars of misconduct, for which the appellant has been warned, as set out in the counter statement, which have not been denied by the appellant, shows that the appellant has been guilty of acts which are blameworthy.
38. The respondent had considered the fact that in the past, the appellant had habitually indulged in acts of misconduct which amounted to previous record and therefore, when the instant act of misconduct, which resulted in the disciplinary proceedings was held to be proved, there were no extenuating circumstances in favour of the appellant. On the other hand, there were only aggravating circumstances to show that the appellant habitually engaged in conduct subversive of discipline.
39. Therefore, the order of termination from service cannot be said to be grossly disproportionate. The Labour Court had mistakenly thought that these warnings were not past record, when it set aside the order of the dismissal. If the Labour Court had gone through the materials before it, it would have been apparent that the workman’s record was blameworthy, which is why so many warnings had to be issued. The Labour Court had not applied its mind judiciously to the materials on record, and the learned single Judge had to interfere with the award and confirm the order of dismissal.
40. On a consideration of the above, it is seen that the learned single Judge had rightly set aside the order of the Labour Court setting aside the order of termination.
41. The writ appeal is therefore dismissed. No costs.