{"id":64288,"date":"2010-03-03T00:00:00","date_gmt":"2010-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/b-rajagopal-vs-jomy-xavier-on-3-march-2010"},"modified":"2017-08-29T04:37:35","modified_gmt":"2017-08-28T23:07:35","slug":"b-rajagopal-vs-jomy-xavier-on-3-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/b-rajagopal-vs-jomy-xavier-on-3-march-2010","title":{"rendered":"B.Rajagopal vs Jomy Xavier on 3 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
B.Rajagopal vs Jomy Xavier on 3 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 215 of 2009()\n\n\n1. B.RAJAGOPAL, 44 YEARS, S\/O.G.\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. JOMY XAVIER, MANAGING PARTNER,\n                       ...       Respondent\n\n2. INDUSTRIAL TRIBUNAL IDUKKI.\n\n                For Petitioner  :SRI.H.B.SHENOY\n\n                For Respondent  :SRI.E.K.NANDAKUMAR\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.N.RAVINDRAN\n\n Dated :03\/03\/2010\n\n O R D E R\n                                                               C.R.\n         K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.\n              ----------------------------------------------\n                 W.A. No.215 & 250 of 2009\n              ----------------------------------------------\n                     Dated 3rd March, 2010.\n                          J U D G M E N T\n<\/pre>\n
Balakrishnan Nair, J.\n<\/p>\n
           These Writ Appeals are filed against the common<\/p>\n
judgment of the learned Single Judge in W.P.(C) Nos.5522 and<\/p>\n
21226 of 2004. The management and the workman challenged<\/p>\n
the award of the Industrial Tribunal, Idukki, in I.D.No.42\/01, by<\/p>\n
filing the above Writ Petitions. The learned Single Judge, by the<\/p>\n
aforementioned common judgment, allowed the Writ Petition filed<\/p>\n
by the management and dismissed the Writ Petition filed by the<\/p>\n
workman.     Hence, these two Writ Appeals by the workman,<\/p>\n
challenging the said common judgment.\n<\/p>\n
           2. The brief facts of the case are the following : Unless<\/p>\n
otherwise specifically mentioned, the parties and exhibits are<\/p>\n
mentioned as referred to in W.P.(C)5522\/04, from which<\/p>\n
W.A.215\/09 arises. The appellant was a workman of a coffee<\/p>\n
estate in Nelliampathy, owned by a partnership firm, viz.,<\/p>\n
Walliawarum Plantations.        The first respondent herein is its<\/p>\n
Managing Partner. It appears, the appellant was apprehending<\/p>\n
disciplinary action against him. In that context, it is alleged that<\/p>\n
WA Nos.215 & 250 of 2009              2<\/span><\/p>\n
he threatened the father of the Managing Partner, of dire<\/p>\n
consequences to his son, if any action is taken against him. It is<\/p>\n
also alleged that he, along with his brother threatened one of the<\/p>\n
partners of the firm, by blocking his car and entering into it. For<\/p>\n
the   above     mentioned       alleged      misconducts,       disciplinary<\/p>\n
proceedings were initiated against the appellant, by issuing a<\/p>\n
charge memo dated 4.9.1997. A translation of the said charge<\/p>\n
memo reads as follows :-\n<\/p>\n
                        “Your reply dated 10.9.1997 to the notice dated<\/p>\n
          4.9.1997 issued to you, has been received. Various assertions in<\/p>\n
          your aforesaid reply having no nexus with the charges levelled<\/p>\n
          against you as per notice dated 4.9.1997, are not being dealt<\/p>\n
          with now. However, your explanations to the charges levelled<\/p>\n
          against you are not satisfactory. Therefore, you are issued a<\/p>\n
          charge sheet as hereunder.\n<\/p><\/blockquote>\n
                        “Due to enmity of majority of workmen employed in<\/p>\n
          the coffee and cardamom estate of Walliawaram Plantations<\/p>\n
          situated at Nelliampathy; you while residing in your house at<\/p>\n
          Arumannoor with the knowledge of the management since<\/p>\n
          24.7.1997, along with your brother, B.Anilkumar acting on your<\/p>\n
          instigation had on several occasions in the month of August 1997<\/p>\n
          threatened and caused mental pain by stating “Your son will be<\/p>\n
          killed” to Mr.K.M.Xavier residing at Kadakkassery House,<\/p>\n
          Kanjikuzhi, at his house, who is the father of the partners and<\/p>\n
          who is leading a retired life due to sickness and old age. Further,<\/p>\n
          you had on several occasions threatened him over phone stating<\/p>\n
          “I am going to the estate, and if anybody dares to touch me, I will<\/p>\n
WA Nos.215 & 250 of 2009             3<\/span><\/p>\n
          kill your son.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
                        Further, on 1.9.1997 at about 3 p.m., when<\/p>\n
          Shri.Johny Joseph who is one of the owners of the estate was on<\/p>\n
          his way to his house at Ayyarkunnam, you along with your<\/p>\n
          brother, B.Anilkumar obstructed the car while in front of<\/p>\n
          Ayyarkunnam High School, having followed and overtaken it.<\/p>\n
          After obstructing the car when you shouted “Can’t you issue<\/p>\n
          notice terminating my services, you rascal?” and when Mr.Johny<\/p>\n
          replied asking you to pose it to the person authorized for it at<\/p>\n
          Kottayam and not to him, you again shouted “That useless is of<\/p>\n
          no use.” You forcefully got into the car stating that he should not<\/p>\n
          be allowed to leave.      When the car started slowly moving<\/p>\n
          forward, you tried to stop the car by pushing the gear lever, tried<\/p>\n
          to take off the switch key, caught hold of his hand and switched<\/p>\n
          off the car by forcibly pressing the clutch. When you threatened<\/p>\n
          to stab him with knife, people around gathered hearing the<\/p>\n
          commotion and thereupon you alighted from the car and went off<\/p>\n
          with your brother by scooter.”\n<\/p><\/blockquote>\n
                        To conduct an enquiry into the matter, Shri.Santosh<\/p>\n
          Modayil, Advocate, Kottayam-2 is appointed as the Enquiry<\/p>\n
          Officer. The venue, date, time, etc. will be informed to you by<\/p>\n
          him and you are required to participate in the enquiry conducted<\/p>\n
          by him. In the enquiry you will be given all opportunity to cross-<\/p>\n
          examine evidence against you and to adduce evidence from your<\/p>\n
          side. In case of your non-participation in the enquiry, enquiry will<\/p>\n
          be proceeded ex parte and further proceedings will be initiated.<\/p>\n<\/blockquote>\n
                 Pending the said enquiry proceedings, your suspension as<\/p>\n
          per notice date 4.9.1997 is hereby extended.”<\/p>\n<\/blockquote>\n
The appellant filed his reply, denying the allegations. The<\/p>\n
WA Nos.215 & 250 of 2009           4<\/span><\/p>\n
Enquiry Officer, so appointed, enquired into the charges. The said<\/p>\n
officer, who is an Advocate, submitted the enquiry report, finding<\/p>\n
the appellant guilty of the aforementioned two allegations. The<\/p>\n
first respondent accepted the enquiry report, after considering<\/p>\n
the objection of the appellant to the same. Based on the said<\/p>\n
report, the appellant was dismissed from service by the first<\/p>\n
respondent, by order dated 7.4.1998.       The appellant\/workman<\/p>\n
raised an Industrial Dispute before the Conciliation Officer, under<\/p>\n
Section 2-A of the Industrial Disputes Act, 1947 (for short, ‘the<\/p>\n
Act’).   Since the conciliation efforts failed, the matter was<\/p>\n
reported to the Government, which in turn, referred the dispute<\/p>\n
for adjudication, as per Government Order dated 18.6.2001. The<\/p>\n
issue referred was “Whether the dismissal of Shri.B.Rajagopal,<\/p>\n
workman by the management of Walliawarum Plantations is<\/p>\n
justifiable? If not, what relief the workman is entitled to?”<\/p>\n
                  3. The Tribunal, as a preliminary issue, found<\/p>\n
that the enquiry was validly held and also came to the conclusion<\/p>\n
that the aforementioned charges were proved, based on the<\/p>\n
evidence on record.        Thereafter, the Tribunal proceeded to<\/p>\n
consider whether the punishment imposed was proper, invoking<\/p>\n
WA Nos.215 & 250 of 2009         5<\/span><\/p>\n
its power under Section 11-A of the Act. The Tribunal took the<\/p>\n
view that the punishment of dismissal awarded to the workman<\/p>\n
was too harsh and disproportionate to the gravity of the<\/p>\n
misconduct proved against him.        Based on that finding, the<\/p>\n
Tribunal further ordered that the management should reinstate<\/p>\n
the workman, without back wages. The Tribunal was of the view<\/p>\n
that the denial of the entire back wages for the period he was<\/p>\n
kept out of service, will serve as adequate punishment. Ext.P1 is<\/p>\n
the award passed by the Industrial Tribunal, on 31.12.2003. The<\/p>\n
management        challenged   the   award,  by   filing   W.P.(C)<\/p>\n
No.5522\/2004. The workman, feeling aggrieved by the denial of<\/p>\n
back wages, filed W.P.(C) No.21226\/2004.      The learned Single<\/p>\n
Judge, after hearing both sides, allowed the Writ Petition filed by<\/p>\n
the management and dismissed the Writ Petition filed by the<\/p>\n
workman, by the common judgment dated 28.11.2008.                As<\/p>\n
mentioned earlier, the aggrieved worker has, therefore, preferred<\/p>\n
these two Writ Appeals.\n<\/p>\n
    4. We heard Smt.Lakshmi B.Shenoy, learned counsel for the<\/p>\n
appellant and Sri.E.K.Nandakumar, learned counsel for the first<\/p>\n
respondent\/management. The main point that arises for decision<\/p>\n
WA Nos.215 & 250 of 2009             6<\/span><\/p>\n
is whether the learned Single Judge was justified in interfering<\/p>\n
with the award, by taking the view that for the misconduct<\/p>\n
proved, the punishment imposed by the management was<\/p>\n
appropriate.   According to the learned Judge, the punishment<\/p>\n
cannot be described as grossly disproportionate to the gravity of<\/p>\n
the offence proved.\n<\/p>\n
           5. Before going into the above point, we would refer<\/p>\n
to Section 11-A of the Act and the history behind the introduction<\/p>\n
of that Section. Section 11-A reads as follows :-<\/p>\n
                         “11-A.  Powers of Labour Courts, Tribunals and<\/p>\n
           National Tribunals to give appropriate relief in case of discharge<\/p>\n
           or dismissal of workmen.–Where an industrial dispute relating<\/p>\n
           to the discharge or dismissal of a workman has been referred to<\/p>\n
           a Labour Court, Tribunal or National Tribunal for adjudication<\/p>\n
           and, in the course of the adjudication proceedings, the Labour<\/p>\n
           Court, Tribunal or National Tribunal, as the case may be, is<\/p>\n
           satisfied that the order of discharge or dismissal was not<\/p>\n
           justified, it may, by its award, set aside the order of discharge<\/p>\n
           or dismissal and direct reinstatement of the workman on such<\/p>\n
           terms and conditions, if any, as it thinks fit, or give such other<\/p>\n
           relief to the workman including the award of any lesser<\/p>\n
           punishment     in  lieu  of  discharge   or    dismissal   as  the<\/p>\n
           circumstances of the case may require :\n<\/p><\/blockquote>\n
                         Provided that in any proceeding under this section<\/p>\n
           the Labour Court, Tribunal or National Tribunal, as the case may<\/p>\n
           be, shall rely only on the materials on record and shall not take<\/p>\n
WA Nos.215 & 250 of 2009             7<\/span><\/p>\n
           any fresh evidence in relation to the matter.”<\/p>\n<\/blockquote>\n
                                           (emphasis supplied)<\/p>\n
This provision was introduced by the Amending Act 45 of 1971,<\/p>\n
with effect from 15.12.1971. The Parliament decided to introduce<\/p>\n
the above provision, with the intention of conferring wider powers<\/p>\n
to the Labour Courts\/Industrial Tribunals, when the dispute before<\/p>\n
them related to dismissal\/discharge of workmen from service.<\/p>\n<\/blockquote>\n
The Apex Court, in Indian Iron and Steel Co.Limited v. Their<\/p>\n
Workmen<\/a> [1958(1) LLJ 260], while dealing with the powers of the<\/p>\n
Industrial Tribunals and Labour Courts, in the matter of<\/p>\n
termination of service of the workmen, held as follows :<\/p>\n
                       “In cases of dismissal on misconduct, the Tribunal<\/p>\n
         does not, however, act as a Court of appeal and substitute its own<\/p>\n
         judgment for that of the management. It will interfere, (i) if there<\/p>\n
         is a want of good faith (ii) when there is victimization or unfair<\/p>\n
         labour practice, (iii) when the management has been guilty of a<\/p>\n
         basic error or violation of a principle of natural justice and (iv)<\/p>\n
         when on the materials, the finding is completely baseless or<\/p>\n
         perverse.”\n<\/p><\/blockquote>\n
The objects and reasons of the Amending Act, introducing Section<\/p>\n
11A read as follows :\n<\/p>\n
               “In Indian Iron and Steel Co.Limited v. Their Workmen<\/a><\/p>\n
         [1958] I L.L.J. 260, the Supreme Court, while considering the<\/p>\n
         Tribunal’s power to interfere with the management’s decision to<\/p>\n
         dismiss, discharge or terminate the services of a workman, has<\/p>\n
WA Nos.215 & 250 of 2009              8<\/span><\/p>\n
         observed that in cases of dismissal for misconduct the, Tribunal<\/p>\n
         does not act as a Court of appeal and substitute its own judgment<\/p>\n
         for that of the management and that the Tribunal will interfere<\/p>\n
         only when there is want of good faith, victimization, unfair labour<\/p>\n
         practice, etc. on the part of the management.<\/p>\n<\/blockquote>\n
                       2.   The International Labour Organization, in its<\/p>\n
         recommendation          (No.119)     concerning     “Termination      of<\/p>\n
         employment at the initiative of the employer” adopted in June<\/p>\n
         1963, has recommended that a worker aggrieved by the<\/p>\n
         termination of his employment should be entitled to appeal<\/p>\n
         against the termination, among others, to a neutral body such as<\/p>\n
         an arbitrator, a Court, an arbitration committee or a similar body<\/p>\n
         and that the neutral body concerned should be empowered to<\/p>\n
         examine the reasons given for the termination of employment and<\/p>\n
         the other circumstances relating to the case and to render a<\/p>\n
         decision on the justification of the termination. The International<\/p>\n
         Labour Organization has further recommended that the neutral<\/p>\n
         body should be empowered (if it finds that the termination of<\/p>\n
         employment was unjustified) to order that the worker concerned,<\/p>\n
         unless reinstated with unpaid wages should be paid adequate<\/p>\n
         compensation or afforded some other relief.<\/p>\n<\/blockquote>\n
                       3. In accordance with these recommendations, it is<\/p>\n
         considered    that   the  Tribunal’s    power    in  an   adjudication<\/p>\n
         proceeding relating to discharge or dismissal of a workman should<\/p>\n
         not be limited and that the Tribunal should have the power, in<\/p>\n
         case wherever necessary to set aside the order of discharge or<\/p>\n
         dismissal and direct reinstatement of the workman on such terms<\/p>\n
         and conditions, if any as it thinks fit or give such other relief to the<\/p>\n
         workman including the award of any lesser punishment in lieu of<\/p>\n
         discharge or dismissal as the circumstances of the case may<\/p>\n
         require. For this purpose, a new S.11A is proposed to be inserted<\/p>\n
         in the Industrial Disputes Act, 1947.”\n<\/p><\/blockquote>\n
WA Nos.215 & 250 of 2009           9<\/span><\/p>\n<\/blockquote>\n
The above quoted objects and reasons would show that one of<\/p>\n
the reasons for the Parliament to introduce the above provision<\/p>\n
was the aforementioned decision of the Apex Court in Indian<\/p>\n
Iron and Steel Company’s case (supra). The Parliament also<\/p>\n
took note of the recommendation of the International Labour<\/p>\n
Organization to provide a neutral body, such as an Arbitrator, a<\/p>\n
court, etc. to look into the grievance of the workman, who is<\/p>\n
aggrieved by the termination of his employment. The objects<\/p>\n
and reasons further clarify that in the case of discharge or<\/p>\n
dismissal, the Tribunal’s power should not be limited and it should<\/p>\n
have power to set aside the order of discharge or dismissal and<\/p>\n
direct reinstatement of the workman on such terms and<\/p>\n
conditions, if any, it thinks fit.\n<\/p>\n
           6. The above legislative history would show that after<\/p>\n
the introduction of Section 11-A, the Industrial Tribunal has got<\/p>\n
wider powers to deal with the case of dismissal of a workman.<\/p>\n
Interpreting the scope of the above Section, the Gujarat High<\/p>\n
Court has rendered an illuminative judgment. M.P.Thaker, C.J., as<\/p>\n
His Lordship then was, speaking for the Division Bench of the<\/p>\n
Court in R.M.Parmar v. Gujarat Electricity Board, Baroda<\/p>\n
WA Nos.215 & 250 of 2009              10<\/span><\/p>\n
(1982 LAB.I.C. 1031), after referring to the objects and reasons of<\/p>\n
the Amending Act, observed as follows :\n<\/p>\n
               “The matter regarding imposition of penalty on employees<\/p>\n
         (it was so realized by International Labour Organization, an<\/p>\n
         international body) could not be left solely to the discretion of the<\/p>\n
         management even if the employee concerned is found to be guilty<\/p>\n
         of the charge levelled against him, presumably because of the<\/p>\n
         conditional approach of the disciplinary authority with his inbuilt<\/p>\n
         and inherent pro-employer-anti-employee bias.        That is why in<\/p>\n
         obeisance to the felt needs of the time it was considered<\/p>\n
         necessary to entrust this most vital function to a neutral body.<\/p>\n
         With the end in view that the employees were not treated more<\/p>\n
         harshly than they deserved in the context of facts and<\/p>\n
         circumstances of the case, and that the employee could get the<\/p>\n
         protection of the Labour Court which could be trusted to make a<\/p>\n
         just and fair approach, the provision was introduced by way of an<\/p>\n
         amendment. It is a benevolent power conferred on the Labour<\/p>\n
         Court and has to be exercised in the spirit in which the provision<\/p>\n
         has been enacted in order to further the intendment and purpose<\/p>\n
         of the legislation, keeping aglow before the mental eye some very<\/p>\n
         important dimensions of the matter, viz. :\n<\/p><\/blockquote>\n
                        (1) There is widespread unemployment in our country<\/p>\n
         and it is difficult to secure a job to earn enough to keep body and<\/p>\n
         soul together unlike in developed countries.<\/p>\n<\/blockquote>\n
                        (2) The State does not provide social benefits like<\/p>\n
         unemployment allowance to enable a discharged employee to<\/p>\n
         sustain himself and his family to some extent, as is being done in<\/p>\n
         the developed countries.\n<\/p><\/blockquote>\n
                        (3) In imposing punishment on an erring employee an<\/p>\n
         enlightened approach informed with the demands of the situation<\/p>\n
WA Nos.215 & 250 of 2009             11<\/span><\/p>\n
         and the philosophy and spirit of the time requires to be made. It<\/p>\n
         cannot be a matter of the ipse dixit of the disciplinary authority<\/p>\n
         depending on his whim or caprice.\n<\/p><\/blockquote>\n
                       (4)   Be it administration of criminal law or the<\/p>\n
         exercise of disciplinary jurisdiction in departmental proceedings,<\/p>\n
         punishment is not and cannot be the ‘end’ in itself. Punishment<\/p>\n
         for the sake of punishment cannot be the motto.                 Whilst<\/p>\n
         deliberating upon the jurisprudential dimension the following<\/p>\n
         factors must be considered–\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       1. In a disciplinary proceeding for an alleged fault of<\/p>\n
         an employee punishment is imposed not in order to seek<\/p>\n
         retribution or to give vent to feeling of wrath.<\/p>\n<\/blockquote>\n
                       2. The main purpose of a punishment is to correct<\/p>\n
         the fault of the employee concerned by making him more alert in<\/p>\n
         the future and to hold out a warning to the other employees to be<\/p>\n
         careful in the discharge of their duties so that they do not expose<\/p>\n
         themselves to similar punishment. And the approach to be made<\/p>\n
         is the approach parents make towards an erring or misguided<\/p>\n
         child.\n<\/p><\/blockquote>\n
                       3. It is not expedient in the interest of the<\/p>\n
         administration to visit every employee against whom a fault is<\/p>\n
         established with the penalty of dismissal and to get rid of them. It<\/p>\n
         would be counter productive to do so for it would be futile to<\/p>\n
         expect to recruit employees who are so perfect that they would<\/p>\n
         never commit any fault.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       4. In order not to attract the charge of arbitrariness it<\/p>\n
         has to be ensured that the penalty imposed is commensurate with<\/p>\n
         the magnitude of the fault. Surely one cannot rationally or justly<\/p>\n
         impose the same penalty for giving a slap as one would impose<\/p>\n
         for homicide.\n<\/p><\/blockquote>\n
WA Nos.215 & 250 of 2009             12<\/span><\/p>\n<\/blockquote>\n
                       5. When different categories of penalties can be<\/p>\n
         imposed in respect of the alleged fault one of which is dismissal<\/p>\n
         from service, the disciplinary authority perforce is required to<\/p>\n
         consult himself for selecting the most appropriate penalty from<\/p>\n
         out of the range of penalties available that can be imposed,<\/p>\n
         having regard to the nature, content and gravity of the default.<\/p>\n
         Unless the disciplinary authority reaches the conclusion that<\/p>\n
         having regard to the nature, content and magnitude of the fault<\/p>\n
         committed by the employee concerned it would be absolutely<\/p>\n
         unsafe to retain him in service the maximum penalty of dismissal<\/p>\n
         cannot be imposed. If a lesser penalty can be imposed without<\/p>\n
         seriously jeopardising the interest of the employer the disciplinary<\/p>\n
         authority cannot impose the maximum penalty of dismissal from<\/p>\n
         service. He is bound to ask his inner voice and rational faculty<\/p>\n
         why a lesser penalty cannot be imposed.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       6. It cannot be overlooked that by and large it is<\/p>\n
         because the maximum penalty is imposed and total ruination<\/p>\n
         stares one in the eyes that the employee concerned is obliged to<\/p>\n
         approach the Court and avail of the costly and time-consuming<\/p>\n
         machinery to challenge in desperation the order passed by the<\/p>\n
         disciplinary authority. If a lesser penalty was imposed, he might<\/p>\n
         not have been obliged to take recourse to costly legal proceedings<\/p>\n
         which result in loss of public time and also result in considerable<\/p>\n
         hardship and misery to the employee concerned.<\/p>\n<\/blockquote>\n
                       7. When the disciplinary proceedings end in favour of<\/p>\n
         the employee the employer has often to pay back wages say for<\/p>\n
         about 5 years without being able to take work from the employee<\/p>\n
         concerned. On the other hand, the employee concerned would<\/p>\n
         have had to suffer economic misery and mental torture for all<\/p>\n
WA Nos.215 & 250 of 2009            13<\/span><\/p>\n
         these years.    Even the misery of being obliged to remain idle<\/p>\n
         without work would constitute an unbearable burden. And when<\/p>\n
         the curtain drops everyone is left with a bitter taste in the mouth.<\/p>\n
         All because extreme penalty of dismissal or removal is imposed<\/p>\n
         instead of a lighter one.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       8. Every harsh order of removal from service creates<\/p>\n
         bitterness and arouses a feeling of antagonism in the collective<\/p>\n
         mind of the workers and gives rise to a feeling of class conflict. It<\/p>\n
         does more harm than good to the employer as also to the society.<\/p>\n<\/blockquote>\n
                       9. Taking of a petty article by a worker in a moment<\/p>\n
         of weakness when he yields to a temptation does not call for an<\/p>\n
         extreme penalty of dismissal from service. More particularly when<\/p>\n
         he does not hold a sensitive post of trust (pilferage by a cashier or<\/p>\n
         by a store-keeper from the stores in his charge, for instance, may<\/p>\n
         be viewed with seriousness). A worker brought up and living in an<\/p>\n
         atmosphere of poverty and want when faced with temptation,<\/p>\n
         ought not to, but may, yield to it in a moment of weakness. It<\/p>\n
         cannot be approved, but it can certainly be understood<\/p>\n
         particularly in an age when even the rich commit economic<\/p>\n
         offences to get richer and do so by and large with impunity. (And<\/p>\n
         even tax evasion or possession of black money is not considered<\/p>\n
         to be dishonourable by and large). A penalty of removal from<\/p>\n
         service is therefore not called for when a poor worker yields to a<\/p>\n
         momentary temptation and commits an offence which often<\/p>\n
         passes under the honourable name of Kleptomania when<\/p>\n
         committed by the rich.\n<\/p><\/blockquote>\n
                       The Labour Court in exercising its power to reduce<\/p>\n
         the penalty has to inform itself of these considerations and play<\/p>\n
         the role assigned to it by its creator loyally and faithfully and in<\/p>\n
         harmony with the enlightened spirit which permeates the<\/p>\n
WA Nos.215 & 250 of 2009              14<\/span><\/p>\n
          legislation.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
We are in respectful agreement with the above view expressed<\/p>\n
by the Gujarat High Court.\n<\/p>\n
            7.    In this context, we think, it will be apposite to<\/p>\n
incidentally refer to the powers of this Court, while judicially<\/p>\n
reviewing the decision of a Labour Court or an Industrial Tribunal.<\/p>\n
Though it is elementary, it has to be restated that doctrine of<\/p>\n
ultra vires is the basis of judicial review. [See Administrative Law<\/p>\n
(10th Edition-by Wade and Forsyth)].\n<\/p>\n
                               “The    simple    proposition   that   a   public<\/p>\n
                  authority may not act outside its powers (ultra vires) might<\/p>\n
                  fitly be called the central principle of administrative law.<\/p>\n
                  The juristic basis of judicial review is the doctrine of ultra<\/p>\n
                  vires. To a large extent the courts have developed the<\/p>\n
                  subject by extending and refining this principle, which has<\/p>\n
                  many ramifications and which in some of its aspects<\/p>\n
                  attains a high degree of artificiality.\n<\/p>\n<\/p>\n
                               Where the empowering Act lays down limits<\/p>\n
                  expressly, their application is merely an exercise in<\/p>\n
                  construing the statutory language and applying it to the<\/p>\n
                  facts. Thus if land may be taken by compulsory purchase<\/p>\n
                  provided that it is not part of a park, the court must<\/p>\n
                  determine in case of dispute whether the land is part of a<\/p>\n
                  park and decide accordingly. If the Act says ‘provided that<\/p>\n
                  in the opinion of the minister it is not a park’, the question<\/p>\n
WA Nos.215 & 250 of 2009              15<\/span><\/p>\n
                 is not so simple. Reading the language literally, the court<\/p>\n
                 would be confined to ascertaining that the minister in fact<\/p>\n
                 held the opinion required. But then the minister might<\/p>\n
                 make an order for the acquisition of land in Hyde Park,<\/p>\n
                 certifying his opinion that it was not part of a park. It is<\/p>\n
                 essential to invalidate any malpractice of this kind, and<\/p>\n
                 therefore the court will hold the order to be ultra vires if<\/p>\n
                 the minister acted in bad faith or unreasonably or on no<\/p>\n
                 proper evidence. Results such as these are attained by<\/p>\n
                 the art of statutory construction.      It is presumed that<\/p>\n
                 Parliament did not intend to authorise abuses, and that<\/p>\n
                 certain safeguards against abuse must be implied in the<\/p>\n
                 Act. These are matters of general principle, embodied in<\/p>\n
                 the rules of law which govern the interpretation of<\/p>\n
                 statutes. Parliament is not expected to incorporate them<\/p>\n
                 expressly in every Act that is passed. They may be taken<\/p>\n
                 for granted as part of the implied conditions to which<\/p>\n
                 every Act is subject and which the courts extract by<\/p>\n
                 reading between the lines.          Any violation of them,<\/p>\n
                 therefore, renders the offending action ultra vires.<\/p>\n
                        As with substance, so with procedure. One of the<\/p>\n
                 law’s notable achievements has been the development of<\/p>\n
                 the principles of natural justice, one of which is the right to<\/p>\n
                 be given a fair hearing before being penalised in any way.<\/p>\n
                 These principles are similarly based upon implied statutory<\/p>\n
                 conditions: it is assumed that Parliament, when conferring<\/p>\n
                 power, intends that power to be used fairly and with due<\/p>\n
                 consideration of rights and interests adversely affected. In<\/p>\n
                 effect, Parliament legislates against a background of<\/p>\n
                 judge-made rules of interpretation.        The judges have<\/p>\n
                 constructed a kind of code of good administrative practice,<\/p>\n
                 taking Parliament’s authority for granted.       Even where<\/p>\n
WA Nos.215 & 250 of 2009               16<\/span><\/p>\n
                 sophisticated reasoning makes them appear to be<\/p>\n
                 frustrating    Parliament’s    intentions  they   still  claim,<\/p>\n
                 paradoxically, to be respecting them.\n<\/p>\n<\/p>\n
                        An act which is for any reason in excess of power<\/p>\n
                 (ultra   vires)   is  often   described  as   being    ‘outside<\/p>\n
                 jurisdiction’. ‘Jurisdiction’, in this context, means simply<\/p>\n
                 ‘power’, though sometimes it bears the slightly narrower<\/p>\n
                 sense of ‘power to decide’, e.g. as applied to statutory<\/p>\n
                 tribunals.    It is a word to which the courts have given<\/p>\n
                 different meanings in different contexts, and with which<\/p>\n
                 they have created a certain amount of confusion. But this<\/p>\n
                 cannot be explained intelligibly except in the particular<\/p>\n
                 contexts where difficulties have been made. Nor should<\/p>\n
                 the difficulties be exaggerated.       For general purposes<\/p>\n
                 ‘jurisdiction’ may be translated as ‘power’ with no risk of<\/p>\n
                 inaccuracy.\n<\/p>\n<\/p>\n
                        Any administrative act or order which is ultra vires<\/p>\n
                 or outside jurisdiction is void in law, i.e. deprived of legal<\/p>\n
                 effect. If it is not within the powers given by the Act, it has<\/p>\n
                 no legal leg to stand on. The situation is then as if nothing<\/p>\n
                 had happened, and the unlawful act or decision may be<\/p>\n
                 replaced by a lawful one.”\n<\/p>\n
It is also equally settled that the High Court cannot act as an<\/p>\n
appellate    authority      over      the    decisions    of    the     Labour<\/p>\n
Courts\/Industrial Tribunals. If the decision is within jurisdiction, it<\/p>\n
is no part of the business of this Court to interfere with the<\/p>\n
WA Nos.215 & 250 of 2009            17<\/span><\/p>\n
decision of the Labour Court\/Tribunal according to its opinion,<\/p>\n
regarding the propriety of the punishment. There is no dispute<\/p>\n
that broadly, the Labour Court\/Tribunal has jurisdiction to<\/p>\n
adjudicate a dispute concerning the         dismissal of a workman.<\/p>\n
But, while exercising that power, the Tribunal may stray out of<\/p>\n
jurisdiction, if it follows a procedure, contrary to fundamental<\/p>\n
judicial principles, like violation of the principles of natural justice,<\/p>\n
or if it omits to take into account relevant matters or takes into<\/p>\n
account irrelevant matters or misdirects itself in law. Even if after<\/p>\n
following a proper procedure, the Tribunal arrives at a conclusion<\/p>\n
which is patently perverse or one which no man in his senses<\/p>\n
would arrive at, then also it can be described that the Tribunal<\/p>\n
has strayed out of jurisdiction because the courts would say, the<\/p>\n
Parliament cannot be intended to have conferred power on the<\/p>\n
Tribunal to arrive at such a perverse decision.          It is also well<\/p>\n
settled in law that a difference of opinion or a different view was<\/p>\n
possible on the facts of the case, is also not a ground for this<\/p>\n
Court to interfere with the decision of an inferior tribunal.      Lord<\/p>\n
Hailsham of St.Marylebone L.C. In re W.            (An infant) (1971)<\/p>\n
A.C.682) put it felicitously that two reasonable persons can<\/p>\n
WA Nos.215 & 250 of 2009         18<\/span><\/p>\n
perfectly reasonably come to opposite conclusions on the same<\/p>\n
set of facts, without forfeiting their title to be regarded as<\/p>\n
reasonable.    The above principle has been followed by the Apex<\/p>\n
Court in several decisions. So, in this case, the point to be<\/p>\n
considered is whether, based on the proven misconduct, if the<\/p>\n
Tribunal   takes     the  view   that    the   punishment        was<\/p>\n
disproportionate to the gravity of the offence; so, the punishment<\/p>\n
of dismissal was not warranted and denial of back wages alone<\/p>\n
would be sufficient,     can it be said to be a decision outside<\/p>\n
jurisdiction or whether it can be described as one which no man<\/p>\n
in his senses would take. We think, it is difficult to condemn the<\/p>\n
decision of the Tribunal in that manner. A plausible view has been<\/p>\n
taken on the facts. If we were acting as the original authority, we<\/p>\n
might have taken a different view, but that will not enable this<\/p>\n
Court to interfere with the decision of the Industrial Tribunal.<\/p>\n
           8. Yet another aspect has also cropped up during the<\/p>\n
hearing of the Writ Appeals, though it was not raised during the<\/p>\n
course of argument before the learned Single Judge. Going<\/p>\n
through the memo of charges, the translation of which we have<\/p>\n
quoted    above,     we  have    serious  doubts    whether     those<\/p>\n
WA Nos.215 & 250 of 2009            19<\/span><\/p>\n
commissions and omissions from the part of the workman will<\/p>\n
amount to a misconduct at all, for the purpose of taking<\/p>\n
disciplinary action.    If the view of the management is accepted,<\/p>\n
we will be adding a new condition to the conditions of<\/p>\n
employment of the workmen, that is to respect or not to<\/p>\n
misbehave towards the near relatives of the persons in<\/p>\n
management of the industrial establishment or the employer<\/p>\n
concerned. In this case, the first allegation is that the workman<\/p>\n
misbehaved towards the father of the Managing Partner of the<\/p>\n
establishment. The second allegation is that the workman along<\/p>\n
with his brother misbehaved towards a partner of the firm, who is<\/p>\n
not directly concerned with the day-to-day affairs of the<\/p>\n
establishment. In this context, we think, it is apposite to quote<\/p>\n
the decision of the Apex Court in A.L.Kalra v. The Project and<\/p>\n
Equipment Corporation of India Ltd. (AIR<\/a> 1984 SC 1361)<\/p>\n
wherein, it was held as follows :-\n<\/p>\n
                       “22. Rule 4 bears the heading ‘General’.     Rule 5<\/p>\n
          bears the heading ‘misconduct’. The draftsmen of the 1975 Rules<\/p>\n
          made a clear distinction about what would constitute misconduct.<\/p>\n
          A general expectation of a certain decent behaviour in respect of<\/p>\n
          employees keeping in view Corporation culture may be a moral or<\/p>\n
          ethical expectation.  Failure to keep to such high standard of<\/p>\n
          moral, ethical or decorous behaviour befitting an officer of the<\/p>\n
WA Nos.215 & 250 of 2009            20<\/span><\/p>\n
          company by itself cannot constitute misconduct unless           the<\/p>\n
          specific conduct falls in any of the enumerated misconduct in<\/p>\n
          Rule 5. Any attempt to telesope R.4 into R.5 must be looked<\/p>\n
          upon with apprehension because Rule 4 is vague and of a general<\/p>\n
          nature and what is unbecoming of a public servant may vary with<\/p>\n
          individuals and expose employees to vagaries of subjective<\/p>\n
          evaluation. What in a given context would constitute conduct<\/p>\n
          unbecoming of a public servant to be treated as misconduct<\/p>\n
          would expose a grey area not amenable to objective evaluation.<\/p>\n
          Where misconduct when proved entails penal consequences, it is<\/p>\n
          obligatory on the employer to specify and if necessary define it<\/p>\n
          with precision and accuracy so that any ex post facto<\/p>\n
          interpretation of some incident may not be camouflaged as<\/p>\n
          misconduct. It is not necessary to dilate on this point in view of a<\/p>\n
          recent decision of this Court in Glaxo Laboratories(I) Ltd. v.<\/p>\n
          Presiding Officer, Labour Court, Meerut (1984)1 SCC 1 : (AIR 1984<\/p>\n
          SC 505), where this Court held that ‘everything which is required<\/p>\n
          to be prescribed has to be prescribed with precision and no<\/p>\n
          argument can be entertained that something not prescribed can<\/p>\n
          yet be taken into account as varying what is prescribed. In short<\/p>\n
          it cannot be left to the vagaries of management to say ex post<\/p>\n
          facto that some acts of omission or commission nowhere found to<\/p>\n
          be enumerated in the relevant standing order is nonetheless a<\/p>\n
          misconduct not strictly falling within the enumerated misconduct<\/p>\n
          in the relevant standing order but yet a misconduct for the<\/p>\n
          purpose of imposing a penalty’.       Rule 4 styled as ‘General’<\/p>\n
          specifies a norm of behaviour but does not specify that its<\/p>\n
          violation will constitute misconduct.    In Rule 5, it is nowhere<\/p>\n
          stated that anything violative of Rule 4 would be per se a<\/p>\n
          misconduct in any of the sub-clauses of R.5 which specifies<\/p>\n
          misconduct.    It would therefore appear that even if the facts<\/p>\n
          alleged in the two heads of charges are accepted as wholly<\/p>\n
WA Nos.215 & 250 of 2009            21<\/span><\/p>\n
          proved, yet that would not constitute misconduct as prescribed in<\/p>\n
          Rule 5 and no penalty can be imposed for such conduct. It may<\/p>\n
          as well be mentioned that R.25 which prescribes penalties<\/p>\n
          specifically provides that any of the penalties therein mentioned<\/p>\n
          can be imposed on an employee for misconduct committed by<\/p>\n
          him. Rule 4 does not specify a misconduct.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
We are not told that good behaviour towards near relatives of the<\/p>\n
persons in management of the firm, is one of the conditions of<\/p>\n
service of the workers. Unless it is a condition of service, we<\/p>\n
think, going by the above principles laid down by the Apex Court,<\/p>\n
it is doubtful whether the allegations in the charge-sheet could<\/p>\n
have been the subject-matter of disciplinary action. But, it does<\/p>\n
not mean that what the workman did was correct or not wrong.<\/p>\n
But, the remedy of the management was to resort to the ordinary<\/p>\n
remedies available to it before the concerned civil\/criminal court.<\/p>\n
No such contention was raised during the course of the argument<\/p>\n
before the learned Single Judge or the Tribunal. Though this point<\/p>\n
was not urged before the lower forums, we think, this Court is not<\/p>\n
prevented from looking into what is manifest on the face of the<\/p>\n
record. The learned Single Judge has quoted the charge-sheet, in<\/p>\n
the judgment under appeal and went on to render the decision.<\/p>\n
So, if the allegations in the charge memo do not disclose any<\/p>\n
WA Nos.215 & 250 of 2009           22<\/span><\/p>\n
misconduct warranting disciplinary action, we think, we are within<\/p>\n
our powers to advert to that and render a decision.<\/p>\n
           9. Now, we will come to the decisions relied on by the<\/p>\n
learned Single Judge, to interfere with the decision of the<\/p>\n
Industrial Tribunal. They are the decisions of the Apex Court in<\/p>\n
U.P.State Road Transport Corporation v. Subhash Chandra<\/p>\n
Sharma and others<\/a> [(2000) 3 S.C.C.324] , Usha Breco<\/p>\n
Mazdoor Sangh v. Management of M\/s.Usha Breco Ltd. &<\/a><\/p>\n
another (2008 AIR SCW 6783), Mahindra and Mahindra Ltd.<\/p>\n
v.   N.B.Naravade<\/a>         [2005-I-LLJ    1129],      Hombe      Gowda<\/p>\n
Educational Trust and another v. State of Karnataka and<\/p>\n
others [(2006) 1 SCC 430], M.P.Electricity Board v. Jagdish<\/p>\n
Chandra Sharma<\/a> [(2005) 3 SCC 401], Muriadih Colliery of<\/p>\n
Bharat Coking Coal Ltd. v. Bihar Colliery Kamgar Union<\/a><\/p>\n
[(2005) 3 SCC 331] and Tata Engineering and Locomotive<\/p>\n
Co.Ltd. v. N.K.Singh<\/a> [(2006)12 SCC 554]. After referring to the<\/p>\n
above decisions, the learned Single Judge has held as follows :<\/p>\n
                        “Considering the gravity of the misconducts found<\/p>\n
           to have been committed by the workman in the light of the<\/p>\n
           above decisions, I have no doubt in my mind that the proved<\/p>\n
           misconducts were serious enough to warrant the punishment of<\/p>\n
           dismissal from service. In any way, it is settled law that the<\/p>\n
WA Nos.215 & 250 of 2009             23<\/span><\/p>\n
           imposition of punishment on a delinquent workman is a<\/p>\n
           managerial function with which the Tribunal and this Court can<\/p>\n
           interfere only if the punishment imposed by the management is<\/p>\n
           shockingly disproportionate to the gravity of the misconducts.<\/p>\n
           On consideration of the misconducts found to have been<\/p>\n
           committed by the workman in this case, I am not satisfied that<\/p>\n
           the punishment of dismissal is shockingly disproportionate to<\/p>\n
           the gravity of the misconducts. Therefore, I am satisfied that the<\/p>\n
           Tribunal was in error in invoking powers under Section 11A of<\/p>\n
           the Industrial Disputes Act to interfere with the punishment<\/p>\n
           imposed by the management.”\n<\/p><\/blockquote>\n
The general principle emerging from the above decisions of the<\/p>\n
Apex Court is that the Tribunal can interfere with the punishment,<\/p>\n
if only it is shockingly disproportionate to the gravity of the<\/p>\n
misconduct proved.          The Tribunal took the view that the<\/p>\n
punishment is grossly disproportionate to the gravity of the<\/p>\n
misconduct proved. This Court can interfere with the same, if<\/p>\n
only the learned Judge found that the said view of the Tribunal is<\/p>\n
one which no man in his senses would take. We notice that the<\/p>\n
learned Judge has acted, as if this Court was sitting in appeal over<\/p>\n
the decision of the Industrial Tribunal. If it was exercising the<\/p>\n
appellate power, the         finding of the learned Single Judge is<\/p>\n
perfectly correct. But, when it comes to judicial review, other<\/p>\n
principles govern the field. As mentioned earlier, difference of<\/p>\n
WA Nos.215 & 250 of 2009              24<\/span><\/p>\n
opinion   does     not    afford    a    ground     for   judicial   review.<\/p>\n
Administrative Law (Wade and Forsyth-10th Edition) deals with the<\/p>\n
above aspect in the following manner :-\n<\/p>\n
                          “There is ample room, within the legal boundaries,<\/p>\n
             for radical differences of opinion in which neither side is<\/p>\n
             unreasonable.    A number of statements to this effect were<\/p>\n
             made in the Court of Appeal and the House of Lords in the case<\/p>\n
             of the Tameside schools, discussed below. Lord Denning MR<\/p>\n
             pointed out the error of confusing differences of opinion,<\/p>\n
             however strong, with unreasonableness on the part of one side<\/p>\n
             or the other. One party may call the other ‘quite unreasonable’<\/p>\n
             when he is well within the legal limits of reasonableness. This<\/p>\n
             was the distinction which the Secretary of State failed to make,<\/p>\n
             as the House of Lords emphatically confirmed. Lord Diplock<\/p>\n
             said:\n<\/p><\/blockquote>\n
                                   The   very   concept    of administrative<\/p>\n
                      discretion involves a right to choose between more<\/p>\n
                      than one possible course of action upon which there is<\/p>\n
                      room for reasonable people to hold differing opinions<\/p>\n
                      as to which is to be preferred.\n<\/p><\/blockquote>\n
\n                    In the same vein Lord Hailsham LC has said that ‘not<\/p>\n
             every reasonable exercise of judgment is right, and not every<\/p>\n
             mistaken exercise of judgment is unreasonable’.”<\/p>\n<\/blockquote>\n
In the light of the above principles, the Tribunal’s view regarding<\/p>\n
punishment being a plausible view, cannot be interfered with.<\/p>\n
           10.      Some of the decisions of the Apex Court<\/p>\n
mentioned above, deal with the physical violence\/abuse from the<\/p>\n
WA Nos.215 & 250 of 2009         25<\/span><\/p>\n
part of the workman, against the officers of the management or<\/p>\n
their contractors. In that context, the punishment of dismissal<\/p>\n
was sustained and where it was interfered with by the Tribunal or<\/p>\n
High Court, the same was reversed by the Apex Court. But, we<\/p>\n
notice that in those cases, the misconducts or abuse or physical<\/p>\n
violence took place in the work place or in the course of<\/p>\n
employment\/duty. But, in this case, the misconduct took place<\/p>\n
far away from the work place and further, the proven misconduct<\/p>\n
was not committed against a person or persons directly involved<\/p>\n
in the management of the establishment. So, if the Tribunal takes<\/p>\n
the view that for the misconduct proved in this case, the<\/p>\n
punishment imposed is grossly disproportionate, we think, this<\/p>\n
Court is not justified in condemning the said decision as perverse<\/p>\n
or one which no man in his senses would take.\n<\/p>\n
           11. In this context, we think, it is apposite to quote the<\/p>\n
decision of the Apex Court, interpreting the provisions of the<\/p>\n
Constitution, dealing with the welfare of workers.        The Apex<\/p>\n
Court in U.P.State Electricity Board and another v. Hari<\/p>\n
Shanker Jain and others (AIR 1979 SC 65) held as follows:<\/p>\n
                     “4A.  Before examining the rival contentions, we<\/p>\n
        remind ourselves that the Constitution has expressed a deep<\/p>\n
WA Nos.215 & 250 of 2009              26<\/span><\/p>\n
        concern for the welfare of the workers and has provided in Art.42<\/p>\n
        that the State shall make provision for securing just and humane<\/p>\n
        conditions of work and in Art.43 that the State shall endeavour to<\/p>\n
        secure, by suitable legislation or economic organisation or in any<\/p>\n
        other way, to all workers agricultural, industrial or otherwise, work,<\/p>\n
        a living wage, conditions of work ensuring a decent standard of life<\/p>\n
        and full enjoyment of leisure etc. These are among the Directive<\/p>\n
        Principles of State Policy. The mandate of Art.37 of the Constitution<\/p>\n
        is that while the Directive Principles of State Policy shall not be<\/p>\n
        enforceable by any Court, the principles are ‘nevertheless<\/p>\n
        fundamental in the governance of the country’ and ‘it shall be the<\/p>\n
        duty of the State to apply these principles in making laws’.<\/p>\n
        Addressed to Courts, what the injunction means is that while Courts<\/p>\n
        are not free to direct the making of legislation, Courts are bound to<\/p>\n
        evolve, affirm and adopt principles of interpretation which will<\/p>\n
        further and not hinder the goals set out in the Directive Principles of<\/p>\n
        State Policy.   This command of the Constitution must be ever<\/p>\n
        present in the minds of Judges when interpreting statutes which<\/p>\n
        concern themselves directly or indirectly with matters set out in the<\/p>\n
        Directive Principles of State Policy.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
The preamble of our Constitution, inter alia, declares ours as a<\/p>\n
socialistic republic. Socialism of all hues are primarily concerned<\/p>\n
with the welfare of the workmen and the under-privileged. In this<\/p>\n
context, we think, it is apposite to quote the views of the Apex<\/p>\n
Court in a very recent decision reported in Harjinder Singh v.<\/p>\n
Punjab State Warehousing Corporation (S.C.)<\/a> [2010 (124)<\/p>\n
WA Nos.215 & 250 of 2009             27<\/span><\/p>\n
FLR 700]. In the said decision, G.S.Singhvy, J. held as follows :<\/p>\n
                       “23. Of late, there has been a visible shift in the<\/p>\n
         Courts approach in dealing with the cases involving the<\/p>\n
         interpretation of social welfare legislations.       The attractive<\/p>\n
         mantras of globalization and liberalisation are fast becoming the<\/p>\n
         raison d’etre of the judicial process and an impression has been<\/p>\n
         created that the constitutional Courts are no longer sympathetic<\/p>\n
         towards the plight of industrial and unorganized workers. In large<\/p>\n
         number of cases like the present one, relief has been denied to<\/p>\n
         the employees falling in the category of workmen, who are<\/p>\n
         illegally retrenched from service by creating by-lanes and side-<\/p>\n
         lanes in the jurisprudence developed by this Court in three<\/p>\n
         decades.\n<\/p><\/blockquote>\n
                             x x x x x x x x x x<\/p>\n
                             x x x x x x x x x x<\/p>\n
          It need no emphasis that if a man is deprived of his livelihood, he<\/p>\n
         is deprived of all his fundamental and constitutional rights and for<\/p>\n
         him the goal of social and economic justice, equality of status and<\/p>\n
         of opportunity, the freedoms enshrined in the Constitution remain<\/p>\n
         illusory.    Therefore, the approach of the Courts must be<\/p>\n
         compatible with the constitutional philosophy of which the<\/p>\n
         Directive Principles of State Policy constitute an integral part and<\/p>\n
         justice due to the workman should not be denied by entertaining<\/p>\n
         the specious and untenable grounds put forward by the employer<\/p>\n<\/blockquote>\n
         – public or private.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Ashok Kumar Ganguly, J., in a concurring judgment, held as<\/p>\n
follows :\n<\/p>\n
                        “I entirely agree with the views expressed by my<\/p>\n
WA Nos.215 & 250 of 2009             28<\/span><\/p>\n
           learned Brother Justice G.S.Singhvi. Having regard to the<\/p>\n
           changing judicial approach noticed by His Lordship and if I, may<\/p>\n
           say so, rightly, I may add a few words, I consider it a very<\/p>\n
           important aspect in decision making by this Court.<\/p>\n<\/blockquote>\n
                         Judges of the last Court in the largest democracy of<\/p>\n
           the world have a duty and the basic duty is to articulate the<\/p>\n
           Constitutional goal which has found such an eloquent utterance<\/p>\n
           in the Preamble. If we look at our Preamble, which has been<\/p>\n
           recognised, a part of the Constitution in His Holiness<\/p>\n
           Kesavananda Bharati Sripadagalvaru and others v. State of<\/p>\n
           Kerala and<\/a> another, we can discern that as divided, in three<\/p>\n
           parts. The first part is a declaration whereby people of India<\/p>\n
           adopted and gave to themselves the Constitution. The second<\/p>\n
           part is a resolution whereby people of India solemnly resolved to<\/p>\n
           constitute India into a sovereign, socialist, secular, democratic<\/p>\n
           republic. However, the most vital part is the promise and the<\/p>\n
           promise is to secure to all its citizens.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                         JUSTICE, social, economic and political; LIBERTY of<\/p>\n
           thought, expression, belief, faith and worship;<\/p>\n<\/blockquote>\n
                         EQUALITY OF status and of opportunity<\/p>\n
           And to promote among them all;\n<\/p><\/blockquote>\n
           FRATERNITY assuring the dignity of the individual and the unity<\/p>\n
           and integrity of the Nation”\n<\/p><\/blockquote>\n
\n           [See Justice R.C.Lahoti, Preamble-The Spirit and backbone of the<\/p>\n
           Constitution of India, Anundoram Barooah Law Lectures, Seventh<\/p>\n
           Series, Eastern Book Company, 2004, at p.3]<\/p>\n
                  Judges and specially the Judges of the highest Court have<\/p>\n
           a vital role to ensure that the promise is fulfilled. If the judges<\/p>\n
           fail to discharge their duty in making an effort to make the<\/p>\n
WA Nos.215 & 250 of 2009            29<\/span><\/p>\n
           Preambular promise a reality, they fail to uphold and abide by<\/p>\n
           the Constitution which is their oath of office.    In my humble<\/p>\n
           opinion, this has to be put as high as that and should be equated<\/p>\n
           with the conscience of this Court.\n<\/p><\/blockquote>\n
                        As early as in 1956, in a Constitution Bench<\/p>\n
           judgment dealing with an Article 32 petition, Justice Vivian Bose,<\/p>\n
           while interpreting the Article 14 of the Constitution, posed the<\/p>\n
           following question :\n<\/p><\/blockquote>\n
<\/blockquote>\n
                  “After all, for whose benefit was the Constitution<\/p>\n
           enacted?”\n<\/p><\/blockquote>\n
                  [Bidi Supply Co. v. Union of India and others<\/a>‘, at Para 23,<\/p>\n
           pg.487]<\/p>\n
           Having posed the question, the Learned Judge answered the<\/p>\n
           same in his inimitable words and which I may quote:<\/p>\n<\/blockquote>\n
                        “I am clear that the Constitution is not for the<\/p>\n
           exclusive benefit of Governments and States; it is not only for<\/p>\n
           lawyers and politicians and officials and those highly placed. It<\/p>\n
           also exists for the common man, for the poor and the humble,<\/p>\n
           for those who have businesses at stake, for the butcher, the<\/p>\n
           baker and the candlestick maker”. It lays down for this land a<\/p>\n
           “rule of law” as understood in the free democracies of the world.<\/p>\n
           It constitutes India into a Sovereign Democratic, Republic and<\/p>\n
           guarantees in every page rights and freedom to the individual<\/p>\n
           side by side and consistent with the overriding power of the<\/p>\n
           State to act for the common good of all.”\n<\/p><\/blockquote>\n
                                                   (Ibid, Emphasis supplied)<\/p>\n
           The essence of our Constitution was also explained by the<\/p>\n
           eminent jurist Palkhivala in the following words :<\/p>\n<\/blockquote>\n
                  “Our Constitution is primarily shaped and moulded for the<\/p>\n
           common man. It takes no account of “the portly presence of the<\/p>\n
           potentates, goodly in girth”. It is a Constitution not meant for<\/p>\n
WA Nos.215 & 250 of 2009            30<\/span><\/p>\n
           the ruler,<\/p>\n
           “but the ranker, the tramp of the road. The slave with the sack<\/p>\n
           on his shoulders pricked on with the goad,<\/p>\n
           The man with too weighty a burden, too weary a load.”<\/p>\n
           [N.A.Palkhivala,   Our   Constitution   Defaced    and   Defiled,<\/p>\n
           MacMillan, 1974, p.29].\n<\/p><\/blockquote>\n
                  I am in entire agreement with the aforesaid interpretation<\/p>\n
           of the Constitution given by this Court and also by the eminent<\/p>\n
           jurist.\n<\/p><\/blockquote>\n
                  In this context another aspect is of some relevance and it<\/p>\n
           was pointed out by Justice Hidayatullah, as His Lordship was<\/p>\n
           then, in Naresh Shridhar Mirajkar and others v. State of<\/p>\n
           Maharastra and another. In a minority judgment, His Lordship<\/p>\n
           held that the judiciary is a State within the meaning of Article<\/p>\n<\/blockquote>\n
           12. [See paras 100, 101 at page 28, 29 of the report]. This<\/p>\n
           minority view of His Lordship was endorsed by Justice Mathew in<\/p>\n
           Kesavananda Bharati (supra) [at page 1949, para 1717 of the<\/p>\n
           report] and it was held that the State under Article 12 would<\/p>\n
           include the judiciary.\n<\/p><\/blockquote>\n
                  This was again reiterated by Justice Mathew in the<\/p>\n
           Constitution Bench judgment in the case of State of Kerala and<\/p>\n
           another v. N.M.Thomas and others, where Justice Mathew’s view<\/p>\n
           was the majority view, though given separately. At para 89,<\/p>\n
           page 515 of the report, his Lordship held that under Article 12,<\/p>\n
           ‘State’ would include ‘Court’.\n<\/p><\/blockquote>\n
                  In view of such an authoritative pronouncement the<\/p>\n
           definition of State under Article 12 encompass the judiciary and<\/p>\n
           in Kesavananda (supra) it was held that “judicial process” is also<\/p>\n
           State action” [para 1717, pg.1949]<\/p>\n
                  That being the legal position under Article 38 of the<\/p>\n
           Constitution, a duty is cast on the State, which includes the<\/p>\n
           judiciary, to secure a social order for the promotion of the<\/p>\n
WA Nos.215 & 250 of 2009              31<\/span><\/p>\n
           welfare of the people. Article 38(1) runs as follows :<\/p>\n<\/blockquote>\n
                  “The State shall strive to promote the welfare of the<\/p>\n
           people by securing and protecting as effectively as it may a<\/p>\n
           social order in which justice, social, economic and political, shall<\/p>\n
           inform all the institutions of the national life”.<\/p>\n<\/blockquote>\n
                  This is echoing the preambular promise.\n<\/p><\/blockquote>\n
                  Therefore, it is clearly the duty of the judiciary to promote<\/p>\n
           a social order in which justice, economic and political informs all<\/p>\n
           the institution of the national life. This was also made clear in<\/p>\n
           Kesavananda Bharati (supra) by Justice Mathew at para 1728,<\/p>\n
           p.1952 and His Lordship held that the Directive Principles<\/p>\n
           nevertheless are :\n<\/p><\/blockquote>\n
                  “…fundamental in the governance of the country and all<\/p>\n
           the organs of the State, including the judiciary are bound to<\/p>\n
           enforce those directives. The Fundamental Rights themselves<\/p>\n
           have no fixed content; most of them are mere empty vessels<\/p>\n
           into which each generation must pour its content in the light of<\/p>\n
           its experience.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
                  In view of such clear enunciation of the legal principles, I<\/p>\n
           am in clear agreement with Brother Justice Singhvi that this<\/p>\n
           Court has a duty to interpret statutes with social welfare-<\/p>\n
           benefits in such a way as to further the statutory goal and not to<\/p>\n
           frustrate it.  In doing so this Court should make an effort to<\/p>\n
           protect the rights of the weaker sections of the society in view of<\/p>\n
           the clear constitutional mandate discussed above.<\/p>\n<\/blockquote>\n
                  Thus, social justice, the very signature tune of our<\/p>\n
           Constitution and being deeply embedded in our Constitutional<\/p>\n
           ethos in a way is the arch of the Constitution which ensures<\/p>\n
           rights of the common man to be interpreted in a meaningful way<\/p>\n
           so that life can be lived with human dignity.\n<\/p><\/blockquote>\n
WA Nos.215 & 250 of 2009             32<\/span><\/p>\n<\/blockquote>\n
                               x x x x x x x x x<\/p>\n
                               x x x x x x x x x<\/p>\n
                  Therefore, the Judges of this Court are not mere<\/p>\n
           phonographic recorders but are empirical social scientists and<\/p>\n
           the interpreters of the social context in which they work. That is<\/p>\n
           why it was said in Authorised Officer, Thanjavur and another v.<\/p>\n
           S.Naganatha Ayyar and others, while interpreting the Land<\/p>\n
           Reforms Act, that beneficial construction has to be given to<\/p>\n
           welfare legislation. Justice Krishna Iyer, speaking for the Court,<\/p>\n
           made it very clear that even though the Judges are<\/p>\n
           “constitutional invigilators and statutory interpreters” they<\/p>\n
           should “also be responsive to Part IV of the Constitution being<\/p>\n
           “one of the trinity of the nation’s appointed instrumentalities in<\/p>\n
           the transformation of the socio-economic order”. The learned<\/p>\n
           Judge made it very clear that when the Judges when “decode<\/p>\n
           social legislation, they must be animated by a goal oriented<\/p>\n
           approach” and the Learned Judge opined, and if I may say so,<\/p>\n
           unerringly, that in this country “the judiciary is not a mere<\/p>\n
           umpire, as some assume, but an activist catalyst in the<\/p>\n
           constitutional scheme” [para 1, p.468]<\/p>\n
                         I am in entire agreement with the aforesaid view<\/p>\n
            and I share the anxiety of my Lord Brother Justice Singhvi about<\/p>\n
            a disturbing contrary trend which is discernible in recent times<\/p>\n
            and which is sought to be justified in the name of globalisation<\/p>\n
            and liberalisation of economy.\n<\/p><\/blockquote>\n
                         I am of the view that any attempt to dilute the<\/p>\n
            constitutional imperatives in order to promote the so called<\/p>\n
            trends    of   “Globalization”,    may   result   in  precarious<\/p>\n
            consequences.      Reports of suicidal deaths of farmers in<\/p>\n
            thousands from all over the country along with escalation of<\/p>\n
            terrorism throw dangerous signal.\n<\/p><\/blockquote>\n
WA Nos.215 & 250 of 2009               33<\/span><\/p>\n<\/blockquote>\n
                                 x x x x x x x x x x<\/p>\n
                                 x x x x x x x x x x<\/p>\n
                   At this critical juncture the Judges’ duty, to my mind, is to<\/p>\n
            uphold the constitutional focus on social justice without being in<\/p>\n
            any way mislead by the glitz and glare of globalization.”<\/p>\n<\/blockquote>\n
The above views of the learned Judges illumine our path. But, the<\/p>\n
learned counsel for the management tried to distinguish this<\/p>\n
decision on facts. But, we think there is no precedent on facts.<\/p>\n
The principles laid down in the above quoted decision bind us as a<\/p>\n
precedent.    If the view canvassed by the learned counsel is<\/p>\n
accepted, the decisions of the Apex Court, relied on by the<\/p>\n
learned Single Judge can be distinguished by saying that none of<\/p>\n
the cases involved man-handling the near relatives of the<\/p>\n
management. But, we are not venturing to do that, as we are<\/p>\n
bound by the principles laid down therein. As noticed earlier, the<\/p>\n
principle laid down in those decisions is that the Tribunal could<\/p>\n
interfere  with     the   punishment,         if  only    it  is  shockingly<\/p>\n
disproportionate to the gravity of the offence.               We are of the<\/p>\n
opinion that the plausible view taken by the Tribunal that the<\/p>\n
punishment is grossly disproportionate to the gravity of the<\/p>\n
offence, cannot be unsettled, invoking the power of this Court<\/p>\n
WA Nos.215 & 250 of 2009         34<\/span><\/p>\n
under Article 226 of the Constitution of India, as this Court is not<\/p>\n
constituted as an Appellate Court under that Article.<\/p>\n
           In the result, W.A.215 of 2009 is allowed.           The<\/p>\n
judgment under appeal is reversed and the Writ Petition is<\/p>\n
dismissed.    In view of this judgment, we cannot grant the relief<\/p>\n
sought by the workman for back wages. Therefore, W.A.250 of<\/p>\n
2009 is closed. No costs.\n<\/p>\n<\/p>\n
                                K.BALAKRISHNAN NAIR, JUDGE.\n<\/p>\n<\/p>\n
                                       P.N.RAVINDRAN, JUDGE.\n<\/p>\n
tgs<\/p>\n
         K.BALAKRISHNAN NAIR &<\/p>\n
                  P.N.RAVINDRAN, JJ.\n<\/p>\n
———————————————-\n<\/p>\n
      W.A. Nos.215 & 250 of 2009\n<\/p>\n
———————————————-<\/p>\n
              J U D G M E N T<\/p>\n
        Dated 3rd March, 2010.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court B.Rajagopal vs Jomy Xavier on 3 March, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 215 of 2009() 1. B.RAJAGOPAL, 44 YEARS, S\/O.G. … Petitioner Vs 1. JOMY XAVIER, MANAGING PARTNER, … Respondent 2. INDUSTRIAL TRIBUNAL IDUKKI. For Petitioner :SRI.H.B.SHENOY For Respondent :SRI.E.K.NANDAKUMAR The Hon’ble MR. Justice K.BALAKRISHNAN NAIR The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-64288","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nB.Rajagopal vs Jomy Xavier on 3 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/b-rajagopal-vs-jomy-xavier-on-3-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"B.Rajagopal vs Jomy Xavier on 3 March, 2010 - 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