{"id":243080,"date":"2007-01-12T00:00:00","date_gmt":"2007-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-tata-tea-limited-vs-the-general-secretary-on-12-january-2007"},"modified":"2017-11-09T05:53:52","modified_gmt":"2017-11-09T00:23:52","slug":"ms-tata-tea-limited-vs-the-general-secretary-on-12-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-tata-tea-limited-vs-the-general-secretary-on-12-january-2007","title":{"rendered":"M\/S.Tata Tea Limited vs The General Secretary on 12 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
M\/S.Tata Tea Limited vs The General Secretary on 12 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP No. 5049 of 2003(A)\n\n\n1. M\/S.TATA TEA LIMITED, MUNNAR\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE GENERAL SECRETARY,\n                       ...       Respondent\n\n2. INDUSTRIAL TRIBUNAL, IDUKKI.\n\n                For Petitioner  :SRI.ANTONY DOMINIC\n\n                For Respondent  :SRI.A.JAYASANKAR\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :12\/01\/2007\n\n O R D E R\n                                   S. Siri Jagan,  J.\n\n                      =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=\n\n                               O.P. No. 5049 of 2003\n\n                      =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=\n\n                       Dated this, the 12th January, 2007.\n\n\n                                  J U D G M E N T\n<\/pre>\n
       Petitioner   is   the   management   in   I.D.No.113\/1999   before   the<\/p>\n
Industrial Tribunal, Idukki.  The issue referred for adjudication was:<\/p>\n
                      “Whether   the   dismissal   of   Smt.   Mary,   No.   2311   is<\/p>\n
               justifiable?  If not, what relief she is entitled to?”<\/p>\n
       2.     Smt.   Mary   was   dismissed   from   service   on   allegations   of<\/p>\n
misconduct,   after   conducting   a   domestic   enquiry.     The   allegation   in<\/p>\n
the  charge  sheet    was  that  she had  used filthy   language  against  the<\/p>\n
Management   Assistant,   Field   Assistant,   Field   Officer   and   the<\/p>\n
Company Supervisor, obstructed the officers of the management when<\/p>\n
they     were   doing   fencing   in   the   company’s   area,   damaged   the   fixed<\/p>\n
fencing stone posts\/barbed  wire  and  threatened them with knife and<\/p>\n
stones on 11-7-1998 at about 5 p.m.  In the domestic enquiry, the said<\/p>\n
workman was found guilty.   Since the dismissal was after a domestic<\/p>\n
enquiry,   the   Tribunal   considered   the   question   of   validity   of   the<\/p>\n
enquiry   as   a   preliminary   point   and   found   that   the   enquiry   was<\/p>\n
conducted   properly   in   compliance   with   the   principles   of   natural<\/p>\n
justice.     Thereafter,   the   Tribunal   considered   the   evidence   in   the<\/p>\n
enquiry   and   found   that   the   findings   of   the   enquiry   officer   is   correct<\/p>\n
and sustainable.  Thereafter, the Tribunal entered a finding that it has<\/p>\n
come out in evidence that along with the workman, her husband and<\/p>\n
son had obstructed the fencing of the boundary and there is only little<\/p>\n
connection   with     respect   to   the   misconduct   proved   against   the<\/p>\n
workman   and   her   employment   under   the   management.     On   that<\/p>\n
reasoning, the Tribunal came to the conclusion that the punishment of<\/p>\n
dismissal   awarded   to   the   workman   is   too   harsh   and   directed   the<\/p>\n
management to  treat the workman as retrenched with effect from the<\/p>\n
date  of  the  award   and  pay   her  backwages  till  the  date  of   the  award<\/p>\n
with   retrenchment   compensation   and   gratuity.   The   petitioner<\/p>\n
O.P. No 5049\/2003.                         -:  2  :-\n<\/p>\n<\/p>\n
-management   is   challenging   the   award   to   the   extent   it   set   aside  the<\/p>\n
punishment imposed by the management.\n<\/p>\n<\/p>\n
       3.     The   contention   of   the   petitioner   is   that   once   the   Tribunal<\/p>\n
finds   that   the   finding   of   the   enquiry   officer   was   correct   and<\/p>\n
sustainable,     that   automatically   means   that   the   finding   on   the<\/p>\n
misconduct   is   accepted   by   the   Tribunal.     After   accepting   that   the<\/p>\n
workman was guilty of the misconduct alleged against her, according<\/p>\n
to   counsel   for   the   petitioner,   the   Tribunal     could   not   have   again   re-<\/p>\n
appreciated   the   evidence   to   come   to   a   different   conclusion   that   the<\/p>\n
misconduct had little connection with the employment of the workman<\/p>\n
under the management.   He would submit that if the misconduct did<\/p>\n
not have any connection with the employment under the management,<\/p>\n
then   it   would   not   be   a   misconduct   at   all.         Since   the   Tribunal   had<\/p>\n
earlier   found   that   the   misconduct   has   been   proved,   such   further<\/p>\n
finding   would   be   totally   perverse   and   on   that   finding,   the   Tribunal<\/p>\n
could   not   have   altered   the  punishment   imposed   by   the  management<\/p>\n
on the workman.\n<\/p>\n<\/p>\n
       4.     On   the   other   hand,   learned   counsel   for   the   1st  respondent<\/p>\n
-Union   would   vehemently   support   the   award.     According   to   him,<\/p>\n
although   the   Tribunal   has   entered     the   finding   that   the   misconduct<\/p>\n
has   been   proved,   the   Tribunal   was   certainly   justified   in   taking   into<\/p>\n
account   the   fact   that   the   whole   incident   occurred   pursuant   to   a<\/p>\n
boundary   dispute   between   the   officers   of   the   management   and   the<\/p>\n
husband of the workman.  The husband of the workman, the workman<\/p>\n
and her son were only trying to defend their own property and in the<\/p>\n
heat of the moment, she may have said something in their attempt to<\/p>\n
protect their property, which cannot be termed to be any misconduct<\/p>\n
at  all,  is   the  contention raised  by the  counsel  for  the 1st  respondent-<\/p>\n
Union.  On that contention, counsel would submit that no interference<\/p>\n
is called for to the impugned award.\n<\/p>\n
\nO.P. No 5049\/2003.                        -:  3  :-\n<\/p>\n<\/p>\n
       5.  I have considered the rival contentions in detail.<\/p>\n
       6.     I   am   unable   to   subscribe   either   to   the   view   taken   by   the<\/p>\n
Tribunal   or   the   arguments   of   the   learned   counsel   for   the   1st<\/p>\n
respondent-Union.   First of all,  after  finding that the misconduct has<\/p>\n
been proved in the enquiry, the Tribunal had no business to again re-<\/p>\n
appreciate   the   evidence   and   come   to   the   conclusion   that   the<\/p>\n
misconduct   had   little   connection   with   her   employment   under   the<\/p>\n
management.  If the misconduct did not have any connection with the<\/p>\n
employment   under   the   management,   then   it   would   not   be   a<\/p>\n
misconduct at all.  On the other hand, the Tribunal had already found<\/p>\n
that   it   is   a   misconduct.     That   being   so,   the   further   finding   of   the<\/p>\n
Tribunal   that   there   was   little   connection   between   the   misconduct<\/p>\n
proved   and   her   employment   under   the   management   is   totally<\/p>\n
perverse.\n<\/p>\n<\/p>\n
       7.   Secondly, I am unable to countenance the contention of the<\/p>\n
1st  respondent   that   the   misconduct   had   no   connection   with   the<\/p>\n
employment   under   the   management.     No   doubt,   it   was   a   property<\/p>\n
dispute.  But the property dispute was between the company, which is<\/p>\n
the employer of the workman and the husband of the workman.   The<\/p>\n
officers   of   the   management   were   actually   trying   to   protect   the<\/p>\n
property of the management under whom the workman was working.<\/p>\n
Therefore,   in   fact,   the   workman   was   obstructing   the   action   of   the<\/p>\n
officers   of   the   Company   in   the   course   of   their   duties.     When   a<\/p>\n
workman of the Company obstructs the officers of the Company while<\/p>\n
exercising their duties as employees of the Company, the misconduct<\/p>\n
committed   by   the   workman   certainly   does   have   connection   with   the<\/p>\n
employment under the management.\n<\/p>\n<\/p>\n
       8.     Now,   I   shall   deal   with   the   question   of   validity   of   the<\/p>\n
interference made by the Tribunal on the punishment imposed by the<\/p>\n
management.  The misconduct found against the workman is that she<\/p>\n
O.P. No 5049\/2003.                            -:  4  :-\n<\/p>\n
used filthy  language  against  the officers of  the Company,   obstructed<\/p>\n
the officers of the management when they were doing fencing in the<\/p>\n
Company   area,   damaged   the   fencing   stones   posts\/barbed   wire   and<\/p>\n
threatened them with knife and stones.  Till some time ago, the views<\/p>\n
of   the   Courts   were   loaded   heavily   in   favour   of   the   workmen   on   the<\/p>\n
ground   that   they   were   at   the   weaker   end   in   terms   of   bargaining<\/p>\n
power. But, of late, the view has changed.   The courts especially the<\/p>\n
Supreme   Court   are   increasingly   in   favour   of   maintaining   strict<\/p>\n
discipline   in   employment.     Some   of   the   latest   decisions   on   the   point<\/p>\n
have   been   referred   to   by   a   Division   Bench   of   this   Court       in   the<\/p>\n
decision   of    Cochin   Shipyard   Ltd.   v.  Industrial   Tribunal,<\/a>   reported   in<\/p>\n
2006(4)   LLN  939.     In   that  decision,   in  paragraph   5,   referring   to  the<\/p>\n
Supreme   Court   decision   in  Mahindra   and   Mahindra   Ltd.   v.  N.B.<\/p>\n
Narawade,<\/a>   [2005   (1)   LLN   1074],   the   Division   Bench   observed   as<\/p>\n
follows:\n<\/p>\n<\/p>\n
              “5.  In  Mahindra and Mahindra Ltd., v. N.B. Narawade<\/a> [2005<\/p>\n
       (1) LLN 1074],  the  Apex  Court  observed  as follows,  in  Para. 14,  at<\/p>\n
       pages 1079 and 1080:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       “It is no doubt  true that after introduction of S. 11A in<\/p>\n
             the   Industrial   Disputes   Act,   certain   amount   of   discretion   is<\/p>\n
             vested with the Labour Court\/Industrial Tribunal in interfering<\/p>\n
             with the quantum of punishment awarded by the management<\/p>\n
             where the concerned  workman is found guilty of misconduct.<\/p>\n
             The said area of discretion has been very well defined boy the<\/p>\n
             various judgments of this Court referred to hereinabove and it<\/p>\n
             is certainly not unlimited as has been observed by the Division<\/p>\n
             Bench   of   the   High   Court.     The   discretion   which   can   be<\/p>\n
             exercised   under   S.11A   is   available   only   on   the   existence   of<\/p>\n
             certain factors like  punishment being disproportionate to the<\/p>\n
             gravity   of   misconduct  so   as   to   disturb   the   conscience   of   the<\/p>\n
             Court, or the existence of any mitigating circumstances which<\/p>\n
             requires the reduction of the sentence, or the past conduct of<\/p>\n
             the workman which may persuade the Labour Court to reduce<\/p>\n
             the  punishment.     In   the   absence  of   any   such   factor   existing,<\/p>\n
             the  Labour   Court   cannot  by   way   of   sympathy   alone   exercise<\/p>\n
             the   power   under   S.11A   of   the   Act   and   reduce   the<\/p>\n
             punishment. . . . . .”\n<\/p><\/blockquote>\n
<\/blockquote>\n
       In  that  case,  the   workman  was  found  guilty  of  assaulting   superior.<\/p>\n
       The   Labour   Court,   Single   Bench   and   Division   Bench   interfered   in<\/p>\n
O.P. No 5049\/2003.                            -:  5  :-\n<\/p>\n<\/p>\n
      the matter and directed reinstatement. The Supreme Court quashed<\/p>\n
      the   same   holding   that   power   of   the   Labour   Court   under   S.   11A   is<\/p>\n
      limited.  It also followed its earlier decision in Orissa Cement, Ltd. v.<\/p>\n
      Adikanda   Sahu<\/a>  [1969   –   I   L.L.J.   518],   and  New   Shrrock   Mills  v.<\/p>\n
      Maheshbhai T. Rao<\/a> [1997 (1) L.L.N. 69].  In those cases, the Labour<\/p>\n
      Court  interfered   in the  matter  as only   abusive  language    was used<\/p>\n
      against   the   superior.     The     Apex   Court   held   that   punishment   of<\/p>\n
      dismissal for use of abusive language against the superior officer in<\/p>\n
      the   presence   of   others   cannot   be   termed   to   be   a   punishment<\/p>\n
      shockingly disproportionate warranting interference under S. 11A.”<\/p>\n<\/blockquote>\n
Later on, in paragraph 6, the Division Bench again extracted another<\/p>\n
decision of the Supreme Court as under:\n<\/p>\n<\/p>\n
              ” . . . . . In Uttar Pradesh State Road Transport Corporation v.<\/p>\n
      Subhash   Chandra   Sharma   and   others<\/a>,   [2000   (2)   L.L.N.   402],   this<\/p>\n
      Court,  after   referring   to the scope  of interference  with punishment<\/p>\n
      under   S.   11A   of   the   Industrial   Disputes   Act   ,   held   that   the   Labour<\/p>\n
      Court was not justified in interfering with the order of removal from<\/p>\n
      service when the charge against the employee stood proved.  It was<\/p>\n
      also   held   that   the   jurisdiction   vested   with   the   Labour   Court   to<\/p>\n
      interfere with punishment  was not to be exercised  capriciously  and<\/p>\n
      arbitrarily.  It was necessary, in a case where the Labour Court finds<\/p>\n
      the   charge   proved,   for   a   conclusion   to   be   arrived   that   the<\/p>\n
      punishment   was   shockingly   disproportionate   to   the   nature   of   the<\/p>\n
      charge   found   proved,   before   it   could   interfere   to   reduce   the<\/p>\n
      punishment. . . . . .”\n<\/p><\/blockquote>\n
<\/blockquote>\n
The   Division   Bench   also   noted   the   following   observation   of   the<\/p>\n
Supreme Court in the case of Life Insurance Corporation of India v. R.<\/p>\n
Dhandapani,<\/a> [2006 (1) L.L.N. 491]:\n<\/p>\n<\/p>\n
              “In   recent   times,   there   is   an   increasing   evidence   of   this,<\/p>\n
      perhaps   well   meant   but   wholly   unsustainable,   tendency   towards   a<\/p>\n
      denudation of the legitimacy of judicial reasoning and process.   The<\/p>\n
      reliefs granted by the Courts must be seen to be logical and tenable<\/p>\n
      within the framework of the law and should not incur and justify the<\/p>\n
      criticism that the jurisdiction of the Courts tends to degenerate into<\/p>\n
      misplaced   sympathy,   generosity   and   private   benevolence.     It   is<\/p>\n
      essential   to   maintain   the   integrity   of   legal   reasoning   and   the<\/p>\n
      legitimacy of the conclusions.  They must emanate logically from the<\/p>\n
      legal findings and the judicial results must be seen to be principled<\/p>\n
      and   supportable   on   those   findings.     Expensive   judicial   mood   of<\/p>\n
      mistaken and misplaced compassion at the expense of the legitimacy<\/p>\n
      of   the   process   will   eventually   lead   to   mutually   irreconcilable<\/p>\n
      situations   and   denude   the   judicial   process   of   its   dignity,   authority,<\/p>\n
      predictability and respectability. . . . .”\n<\/p><\/blockquote>\n
<\/blockquote>\n
As such, stress has changed from an attitude totally  favourable to the<\/p>\n
workman   to   that   of   maintaining   discipline   among   workmen   in<\/p>\n
O.P. No 5049\/2003.                            -:  6  :-\n<\/p>\n
industries.\n<\/p>\n<\/p>\n
       9.     In   another   decision   of  the   Supreme   Court   in  L.K.   Verma  v.<\/p>\n
HMT   Ltd.     and   another,   [(2006)   2   SCC   269],   in   paragraph   22,   the<\/p>\n
Supreme Court held thus:\n<\/p>\n<\/p>\n
               “22.     So   far   as   the   contention   as   regards   quantum   of<\/p>\n
       punishment is concerned, suffice it to say that verbal abuse has been<\/p>\n
       held to be sufficient for inflicting a punishment of dismissal.”<\/p>\n<\/blockquote>\n
In   that   decision,   the   Supreme   Court   also   quoted   with   approval   the<\/p>\n
following paragraph from the decision of  Hombe Gowda Edn. Trust v.<\/p>\n
State of Karnataka,<\/a> (2006) 1SCC 430:\n<\/p>\n<\/p>\n
               “30.     This   Court   has   come   a   long   way   from   its   earlier   view<\/p>\n
      points.  The recent trends in the decisions of this Court seek to strike<\/p>\n
      a   balance   between   the   earlier   approach   of   the   industrial   relation<\/p>\n
      wherein only the interest of the workmen was sought to be protected<\/p>\n
      with  the   avowed   object  of   fast   industrial   growth   of   the  country.     In<\/p>\n
      several decisions of  this Court it has been noticed  how  discipline  at<\/p>\n
      the workplace\/industrial undertakings received a set back. In view of<\/p>\n
      the   change   in   economic   policy   of   the   country,   it   may   not   now   be<\/p>\n
      proper to allow the employees to break the discipline with impunity.<\/p>\n
      Our country is governed by rule of law.   All actions, therefore,  must<\/p>\n
      be   taken   in   accordance   with   law.     Law   declared   by   this   Court   in<\/p>\n
      terms of   Article  141  of  the Constitution,  as  noticed  in   the decisions<\/p>\n
      noticed   supra,   categorically   demonstrates   that   the   Tribunal   would<\/p>\n
      not  normally   interfere   with  the   quantum   of   punishment   imposed   by<\/p>\n
      the employers unless an appropriate case is made out therefor.  The<\/p>\n
      Tribunal   being   inferior   to   this   Court   was   bound   to   follow   the<\/p>\n
      decisions   of   this   Court   which   are   applicable   to   the   facts   of   the<\/p>\n
      present case in question.    The Tribunal can neither  ignore the ratio<\/p>\n
      laid down by this Court nor refuse to follow the same.”<\/p><\/blockquote>\n
       10.     Another   decision   which   was   bearing   on   the   point   is   the<\/p>\n
decision of M\/s. Tata Engineering and Locomotive Company Limited v.<\/p>\n
N.K. Singh,<\/a>   reported in 2006 AIR SCW 6214, paragraph 10 of which<\/p>\n
reads as follows:\n<\/p>\n<\/p>\n
               “10.  We find that the Labour Court has found the inquiry to be<\/p>\n
      fair   and   proper.     The   conduct   highlighted   by   the   management   and<\/p>\n
      established in inquiry was certainly of very grave nature.  The Labour<\/p>\n
      Court and the High Court have not found that misconduct was of any<\/p>\n
      minor   nature.     On   the   contrary,   the   finding   on   facts   that   the   acts<\/p>\n
      complained   of  were  established   has  not   been   disturbed.    That  being<\/p>\n
      so,   the     leniency   shown   by  the   Labour   Court   is   clearly   unwarranted<\/p>\n
      and   would   in   fact   encourage   indiscipline.     Without   indicating   any<\/p>\n
      reasons   as   to   why   it   was   felt   that   the   punishment   was<\/p>\n
O.P. No 5049\/2003.                                 -:  7  :-\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
        disproportionate, the Labour Court should not have passed the order<\/p>\n
        in   the     manner   done.     The   case   of   R.P.   Singh   was   not   on   a   similar<\/p>\n
        footing.     He   was   one   of   the   persons   instigating   whereas   the<\/p>\n
        respondent   was   the   person   who   committed   the   acts.   Therefore   the<\/p>\n
        order   of   the   Labour   Court   as   affirmed   by   the   High   Court   cannot   be<\/p>\n
        sustained   and   are   set  aside.     The   order   of   dismissal   from   service   as<\/p>\n
        passed   by   the   Labour   Court   in   the   disciplinary   proceedings     stand<\/p>\n
        restored.”\n<\/p><\/blockquote>\n
<\/blockquote>\n<\/blockquote>\n
These judgments would definitely support the argument of the learned<\/p>\n
counsel   for   the   petitioner-management   that   even       verbal   abuse   of<\/p>\n
superiors has been considered by the Supreme Court as grave enough<\/p>\n
to warrant the punishment of dismissal and   the Tribunal should not,<\/p>\n
as a matter of course, interfere with the punishment imposed by  the<\/p>\n
management   without   a   specific   finding   to   the   effect   that   the<\/p>\n
punishment   was   shockingly   disproportionate     to   the   nature   of   the<\/p>\n
charge found proved, under Section 11A.  Keeping in view the nature<\/p>\n
of   the   misconduct   proved   against   the   workman   in   this   case,   as<\/p>\n
mentioned  above,  I   am  of  opinion  that   the  Tribunal  was   wrong  in   at<\/p>\n
least   directing   payment   of   backwages   to   the   workman.   I   am     even<\/p>\n
inclined  to   think   that   the  Tribunal   is     wrong     in   interfering   with  the<\/p>\n
punishment imposed by  the management at all. But, taking a lenient<\/p>\n
view,   I  modify  the  award  deleting the  direction  to  pay  backwages  to<\/p>\n
the workman but retaining  the other relief directing the management<\/p>\n
to  treat  the workman  as   retrenched with  effect  from  the  date  of the<\/p>\n
award and to pay retrenchment compensation and gratuity purely as a<\/p>\n
matter of sympathy.  The original petition is allowed as above.<\/p>\n<\/blockquote>\n
                                                              Sd\/-  S. Siri Jagan,  Judge.\n<\/p><\/blockquote>\n
<\/blockquote>\n
Tds\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M\/S.Tata Tea Limited vs The General Secretary on 12 January, 2007 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. 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