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Management of Sri Ramakrishna Steel Industries Limited v/s Presiding Office, Labour Court and Another

    W.P. No. 6861/1983

    Decided On, 21 August 1995

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE ABDUL HADI

    N. Balasubramanian, K. M. Ramesh, Advocates.



Judgment Text

This writ petition filed by the petitioner-management is to quash the award dated March 7, 1983 passed by the first respondent-Labour Court in I.D. No. 79 of 1982 under Section 11A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The said award has held that the order dated May 28, 1981, of dismissal from service of the second respondent workman, passed in the domestic enquiry, is not justified, (the punishment of dismissal being not commensurate with the gravity of misconduct), even though the misconduct has been proved and has directed reinstatement of the petitioner with continuity of service, without back wages.


2. The only question in this writ petition is how far this Court can interfere with the said order passed under Section 11A of the Act. The second respondent is an employee of the petitioner and he was by the above said, order dated May 28, 1981 dismissed from service, since he grossly abused and threatened his superior, the Supervisor on April 15, 1981 as follows and since his previous record also was not satisfactory.


(Text Matter being in vernacular language not reproduced)


2-A. The material portion of Section 11A of the Act runs as follows :



"Where an industrial dispute relating to the ... discharge or dismissal of a workman has been referred to a Labour Court ... and ... the Labour Court .... is satisfied that the order of the discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit for the or give such other relief to the workman, including the award of any lesser punishment in lieu of discharge or dismissal as the circumstance of the case may require" *


3. No doubt, as pointed out by the learned counsel for the second respondent, in the Management of TAFE v. Venkataraman and others (1990-II-LLJ-468) presumably reiterating the law laid down in Hindustan Machine Tools Limited, Bangalore v. Mohamed Usman and another (1983-II-LLJ-386) the Supreme Court Division Bench of this Court held;



"Once that power has been exercised (under Section 11A) of the Act) this Court under Article 226 of the Constitution of India, in the absence of any important legal principle, should not undertake to reexamine the question of adequacy or inadequacy of the materials for interference by Labour Court." *


4. But learned counsel for the petitioner points out that there are errors apparent on the facet of the records in the order of the Labour Court and that the order is perverse. In order to consider this argument, the relevant position of the impugned order may be extracted below :



"The Management has produced Exhibits M-16 to Exhibit M-30 relating to the period from 1975 to 1981 regarding various proceedings taken against the petitioners. It has to be noted that Exhibits M-16 to M-18, M-20, M-22, M-24, M-26, M-28, M-30, M-32, M-41 and M-43 are all warnings issued to the petitioner on the complaints given by other employees.


It is also further to be noted that in respect of proceedings by Exhibits M-34 to M-41 enquiry was conducted and there is no proof that in respect of other warnings any enquiry was conducted. Whatever it be warning is not mentioned as one of the punishments in the Standing Order of the respondent Company. In Exhibit M-14 warning is not mentioned as one of the punishments. In those circumstances the worker could not raise any Industrial Dispute to set aside the punishment. Therefore, it could not be said that the past record of the petitioner even admitting that he was awarded warnings could not be described as very bad records." *


5. The contention of learned counsel for the petitioner is that the Labour Court erred in construing the expression past record in invoking Section 11A of the Act. Further he points out that in order to arrive at the gravity of the misconduct committed by the second respondent, the Labour Court ought to have specifically referred to the various warnings that have been given earlier during the course of the past six years of service, before coming to the conclusion that the past record of the petitioner was not "very bad". He also very much stressed that the second respondent did not lead any evidence contra as against the above referred to several exhibits showing the past bad record of the second respondent. In fact, he points out that the above said Exhibits have been marked by consent, since there was no oral evidence on either side. In other words, he points out that the second respondent has no way taken exception to what is contained in the above said exhibits showing his past record. This material feature has also not been taken note of at all by the Labour Court, according to the said counsel. He also relied on several decisions.


6. Learned counsel for the second respondent reiterated the reasoning of the Labour Court. He however, admitted that no oral evidence was led by second respondent and no attempt was taken to lead any contra evidence, in relation to the above referred to Exhibits showing the past record. But he submits that there was no earlier domestic enquiry leading to any punishment as prescribed in the Standing Order. He also relied on several decisions.


7. I have considered the rival submissions. First of all I must point out that the Labour Court has erred in thinking that unless a domestic enquiry was held relating to any past misconduct and punishment was given after finding the workman guilty in accordance with the Standing Order, it cannot be said that there was no bad past record. The relevant Standing Order in Rule 20(c) only states :

"In awarding punishment under the Standing Order, the employer shall take into account the gravity of the misconduct, the previous record if any of the workmen and any other extenuating or aggravating circumstances that may exist."


This does not mean that the term" previous record" *


in the above said rule would mean punishment awarded.


8. No doubt the learned counsel for the second respondent relied on the following observations of Gauhati High Court in Workmen of Tanganagaon Tea Estate v. Management of Tanganagaon Tea Estate and Others (1987-II-LLJ-491)

"As regards antecedents, unless the workman was earlier punished after disciplinary enquiry, no inference of guilt could be normally drawn". Here must be noted that Gauhati High Court has only used the word" normally"in the above passage. Further what is stated therein is only that" inference of guilt" *


could be drawn. But, in the present case, from the past record of the second respondent as seen from the above said several exhibits filed (containing the above said warnings) it can be easily seen that this is an abnormal case. Further the Labour Court itself has come to the conclusion that the guilt is proved and so there was no necessity to infer the guilt.


9. Then coming back to the above referred to abnormality, one must see the nature and severity of the above said warning as found from the several exhibits filed. One of these exhibits viz., Exhibit M-16 dated March 29, 1975 has given warning for the following reason :


(Text Matter being in vernacular language not reproduced)


There is another exhibit, dated March 11, 1976 giving another warning, for the following reason as found therein.


(Text Matter being in vernacular language not reproduced)


Yet another Exhibit dated April 21, 1976 had given warning for the following reason(Text Matter being in vernacular language not reproduced)


Yet another Exhibit dated April 29, 1976 had given the warning for the following reason :


(Text Matter being in vernacular language not reproduced)


Yet another Exhibit dated January 18, 1978 had given the warning for the following reasons :


(Text Matter being in vernacular language not reproduced)


Yet another Exhibit dated February 12, 1979 had given the warning for the following reasons :


(Text Matter being in vernacular language not reproduced)


Yet another Exhibit dated December 17, 1979 had given the warning for the following reason


(Text Matter being in vernacular language not reproduced)


Yet another Exhibit notice dated February 6, 1981 had given the warning for the following reason :


(Text Matter being in vernacular language not reproduced)


Yet another Exhibit Notice dated February 6, 1981 had given the warning for the following reason :


(Text Matter being in vernacular language not reproduced)


Yet another Exhibit dated April 3, 1981 which appears to be the last and final warning gives the following reasons :


(Text Matter being in vernacular language not reproduced)


10. When such is the case, it is clear that continuously for a long period, the second respondent has not only disobeyed the oral and written instructions, but also caused monetary losses to the petitioner management, as seen above. In the exhibit dated April 3, 1981 even cut in wages was resorted to and it is stated therein that that is the last chance given to the workman for mending his ways. Simply because, the petitioner-management only gave warnings but did not resort to holding an enquiry and award punishment to the second respondent in accordance with clause 20 of the Standing Order. (which provides for punishments for misconduct), it cannot be said that the past record of the second respondent was not a very bad one. The Labour Court has clearly committed error apparent on the face of the record by not actually applying its mind to the above said contents of the several exhibits filed by the management to which the second respondent has not even chosen to take any exception nor led any contra evidence. In fact, there was no oral evidence on either side and the said Exhibits were marked by consent. This very important feature has not been taken note of at all by the Labour Court in passing the impugned order of reinstatement under Section 11A.10A. Labour Court has also made a totally wrong approach to the case on the alleged footing that there is no punishment as such as per the above standing Order. In other words, the said wrong approach is that it included that such a punishment only could be termed as 'past record' (within the meaning of the above said clause 20(c) of the Standing Order). Further it cannot be said that the said clause 20 exhausts all kinds of punishments. Warning could also be termed as punishment when administered to a workman in writing by the employer for some blameworthy act or omission. In Hamdard Dawakhaja Wakf v. Its Workman (1962-II-LLJ-772) the Supreme Court took also into consideration past warnings along with other past punishments in considering the correctness of the punishment of dismissal in question therein.


11. Further there are also other errors on the face of record. Rama Kant Misra v. State of U.P. and others (1982-I-LLJ-442) relied on by the Labour Court, cannot have application to the present facts. No doubt there too the misconduct which resulted in the dismissal order in the domestic enquiry consisted of use of indiscrete or abusive of threatening language on a particular date but in the said case the management had not shown that there was any blameworthy conduct on the part of the workman during the earlier period of 14 years service.


12. Further the decision relied on by the Labour Court in Sri Ganeshar Aluminium Factory v. Industrial Tribunal, Madras and another (1982-I-LLJ-159) also has no specific application to the present case. There it was only held that the number of years of service put in by a workman might not alone be a relevant factor in awarding lesser punishment.


13. Even Madura Coats Limited v. Labour Court, Madurai and another (1981-I-LLJ-57) relied on by the Labour Court has also no application to the present case. There also the workman disregarding the instructions of management, absented himself from duty for one day and participated in Dharna for which management dismissed him from service. In that case, also there was no proof of any bad past record and in that context only the Court held that a day's absence or defiance of the instructions of management was not such a serious misconduct as to deserve the punishment of dismissal.


14. In so far as the decision reported in Sri Gopalakrishana Mills Pvt. Ltd. v. Labour Court and another (1980-I-LLJ-425) referred to by the Labour Court, it must be stated that the said decision actually went in favour of the management, since the Labour Court's award therein directing reinstatement instead of dismissal, was quashed by this Court under Article 226 of the Constitution of India.


15. The decision relied on by the learned counsel for the second respondent viz., Charles v. First Additional Labour Court Madras and another 1994-II-LLN-181 also cannot have such application to the present facts.

"There too, no doubt, the delinquent employee appears to have abused his superiors in filthy and vulgar language, but the delinquent's past misconduct was found to be trivial in nature. It is not so, in the present case, as already pointed out. Further it may be pointed out that in Lamani v. Bajaraj Textiles and another (1991-I-LLJ-838) this court held that such language used in presence of several other workers certainly amounts to misconduct subversive of discipline. For all the above said reasons, interference under Article 226 is warranted in this case, to quash the impugned Award, holding that there is no warrant for the Labour Court to set aside the punishment of dismissal as void.


16. Learned counsel for the second respondent also submits that before awarding punishment of dismissal, no second show caused notice was give as found in clause 21-A(c) of the above said Standing Order and hence the dismissal order is vitiated. But it must be noted that such a plea was not taken at all by the second respondent herein before the Labour Court. Learned counsel for the second respondent no doubt sought to point out and that such a plea was taken though not in the original claim statement in the reply statement filed by the second respondent before the Labour Court. In this connection, he pointed out para. 3 of the said reply statement, but that para. deals with past record of the workmen. No doubt, one sentence therein runs as follows :" *


This claimant was not given any show cause notice and the enquiry was conducted by the management"


The statement cannot be said to

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refer to the above said second show cause notice before awarding punishment. At any rate, if really a second show-cause notice has to be given but was not given before awarding punishment of dismissal, that plea would have been taken in the claim statement itself. Further Standing Order 21A(c) only provides that if the workman has been found guilty, a "reasonable opportunity of making representation" on the punishments to be imposed should be given. While so, when there is no plea that no such reasonable opportunity was given the present argument of the learned counsel falls to the ground. 17. No doubt, learned counsel for the petitioner sought to rely on the decision in Engine Valves Limited v. Labour Court Madras and another (1991-I-LLJ-372) and in A.C.C. Limited v. T. C. Shrivathsav (1984-II-LLJ-105) (SC) in this regard. But there is no necessity to deal with those decisions in the view I have taken as stated above. 18. Learned counsel for the petitioner also submits that already a sum of Rs. 50, 000/- has been given to the second respondent by way of payments under Section 17-B of the Act pursuant to the interim order of this Court. But learned counsel for the second respondent submits that the said amount received by his client in all may between Rs. 30, 000/- to 40, 000/- There is no necessity to go into these rival submissions in the view I have already taken that the award of the Labour Court has necessarily to be quashed for the other reasons given by me earlier. 19. The result is, the impugned award is hereby quashed and this writ petition is allowed. However, in the circumstances of the case, no costs.
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