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The Divisional Railway Manager, Personnel Branch, Southern Railway, Chennai & Another The Registrar, The Industrial Tribunal, Tamil Nadu, Chennai & Others


Company & Directors' Information:- SOUTHERN INDUSTRIAL CORPN LIMITED [Active] CIN = L99999TN2000PLC002432

    W.P. Nos. 2643 and 7635 of 2001

    Decided On, 02 March 2010

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE K. CHANDRU

    For the Petitioners : V.P. Rajendran, Nazarulla for K.V. Shanmuganathan, Advocates. For the Respondents : R2 Nazarulla, V.P. Rajendran, Advocates.



Judgment Text

(Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorari, to call for the records of the impugned order in I.D.No.37/96 dated 4.8.2000 from the files of the Hon'ble Industrial Tribunal, Tamil Nadu, Chennai, quash the same.)


( Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records pertaining to the Award of the first respondent in I.D.No.37/96 dated 4.8.2000, quash the same in so far as denying backwages is concerned and consequently direct the 2nd respondent to pay backwages to the petitioner from 25.08.87 to till date.)


COMMON ORDER


1. W.P.No.2643 of 2001 was filed by the Divisional Railway Manager, Personnel Branch, Southern Railway, Chennai, aggrieved by the Award passed by the first respondent-Industrial Tribunal in I.D.No.37/97 dated 04.08.2000.


2. By the impugned Award, the Industrial Tribunal held that the punishment of dismissal given to the second respondent-Workman was wrong and therefore it modified the punishment into one of reduction in rank as Kalashi for three years from the date of entry into that post. With reference to backwages, the Tribunal did not grant any relief.


3. The writ petition was admitted on 12.02.2001. An order of interim stay was granted on the same day. Subsequently, on an application filed by the Workman, the interim stay was modified on 08.10.2001. Though the arrears of wages of the Workman in terms of the Award worked out to Rs.6,26,800/-, this Court directed the petitioner/Railways to deposit a sum of Rs.3,00,000/- to the credit of I.D.No.37 of 1996 on the file of the Industrial Tribunal, Chennai within a period of six weeks. On such deposit, the workman was allowed to withdraw Rs.50,000/-. The balance amount of Rs.2,50,000/- was directed to be deposited with the Indian Bank, Extension counter, High Court, initially for a period of three years and with a further direction to renew the same periodically. This Court also directed the petitioner/Railways to pay a sum of Rs.2500/- per month towards last drawn wages in terms of Section 17-B of the Industrial Disputes Act, 1947. The arrears of the last drawn wages between from February 2001 to September 2001 was directed to be paid on or before 10th November 2001. The last drawn wages from the month of October 2001 was directed to paid on or before 10th of every succeeding month.


4. Aggrieved by the interim order passed by this Court, the petitioner/Railways moved a Division Bench of this Court in W.A.No.1007 of 2000. Initially, the Division Bench entertained the writ appeal. But subsequently, on compliance of the interim order passed by this Court, the writ appeal itself was dismissed. It is now stated by the learned counsel for the Railways that it had complied with the condition of payment of Rs.2500/- till the end of February 2009 and abruptly stopped the payment on the ground that the workman had reached the age of superannuation.


5. In the meanwhile, the second respondent/Workman had filed W.P.No.7635 of 2001 challenging that portion of the Award in denying backwages. The said writ petition was admitted on 18.04.2001 and directed to be posted along with the writ petition filed by the petitioner/Railways.


6. In view of the interconnectivity between both the writ petitions, they were heard together and a common order is passed.


7. The facts leading to the passing of the impugned Award were as follows: The Workman was employed as a casual labour from 08.02.1972. Subsequently, his services were regularised in the post of Khalasi with effect from 30.12.78. He was also promoted as AC-Coach Attendant on 18.07.1981. On 07.07.1987, the workman committed a misconduct by assaulting an Electrical Chargeman, which led to his suspension on 08.07.1987.


8. Thereafter, on 25.08.1987, the petitioner/Railways invoked power under Article 311(2)(b) of the Constitution and dismissed the petitioner from service without conducting an enquiry. According to the Railways, it was not reasonably practicable to hold an enquiry. The workman filed an appeal before the Divisional Railway Manager on 11.09.1987. The said appeal was rejected on 18.11.1987. He filed O.A.No.809 of 1987 before the Central Administrative Tribunal (CAT) challenging the order of removal. The CAT by its order dated 15.11.1989 allowed the Original Application and directed the respondent to pass orders on the appeal filed by the Workman.


9. Pursuant to the order passed by the CAT, the Divisional Railway Manager considered his appeal and after granting personal hearing rejected his appeal by an order dated 19.03.1990. Once again, the petitioner moved the CAT with O.A.No.722 of 1990. The Tribunal by a judgment dated 24.02.1992 held that the order dispensing with the enquiry may not be proper. Since the incident had taken place during the year 1987 and as more than three years have elapsed, the Railways may consider conducting an enquiry before passing any final order against the petitioner. On such remand, the Railways ordered for an enquiry.


10. Even before this order, the Electrical Chargeman, whom the petitioner had allegedly assaulted filed a criminal case before the Metropolitan Magistrate Court at George Town in C.C.No.8123 of 1987. The learned Magistrate convicted the workman, but however let him on probation by invoking power under Section 4(1)(3) of the Probation of Offenders Act, 1958. As against the said order, the petitioner preferred an Appeal in C.A.No.119 of 1988 before the XI Additional Sessions Judge, Chennai. The said appeal was dismissed. As against the dismissal of the Appeal, the workman preferred Criminal Revision before this Court in Crl.R.C.No.83 of 1989.


11. During the enquiry, the Management of the Railways took advantage of the conviction (inspite of the fact that the conviction was converted into one of letting the workman on probation) held that in view of his conviction, it was not necessary to hold an enquiry and that the punishment of dismissal was just and proper. Against the order dated 17.06.1992, the Workman raised an Industrial Dispute before the Assistant Labour Commissioner (Central) under Section 2A of the I.D.Act. The Conciliation Officer, as he could not bring about any mediation, sent his failure report to the Government of India. The Government of India by the exercise of its power under Section 10(1) of the I.D.Act vide its order dated 17.04.1996 referred the issue of termination of the workman for adjudication by the Industrial Tribunal, Chennai. The Industrial Tribunal, Chennai on receipt of the said order of reference took up the dispute as I.D.No.37 of 1996.


12. The workman filed a claim statement before the Tribunal dated 01.06.1993. The Management filed their counter statement dated Nil (1993). Before the Tribunal, the workman had examined himself as W.W.1 and filed six documents, which were marked as Exs.W1 to W6. On the side of the management of the Railways, one Prithiviraj was examined as M.W.1 and filed five documents, which were marked as Exs.M1 to M5.


13. The Tribunal on an appreciation of materials placed before it came to the conclusion that in so far as the conviction of the workman is concerned, since his revision case preferred before this Court as well as the criminal appeal before the Sessions Court had reached finality, no facts can be doubted. It was contended by the Workman that one Loganathan, who was also similarly terminated from service for the same misconduct of assault on a superior officer was reinstated in a lower post after getting an apology from him. The workman was also willing to apologise. Therefore, the Tribunal held that since the Workman also stood in the same footing as that of Loganathan in so far as the misconduct was concerned, punishment should be alike for both and there should not be any discrimination. After recording the apology tendered by the Workman, the order of termination passed against the Workman was set aside and the punishment was modified into one of reduction in rank as Khalasi for a period of three years. In so far as the backwages is concerned, the Tribunal declined to mention anything about the backwages. Aggrieved by the same, the workman had also filed the writ petition as noted already.


14. Mr.V.P.Rajendran, learned Standing Counsel for the Railways contended that assault of a superior is a grave misconduct. Therefore, no sympathy should be shown to the petitioner. In this context, he placed reliance upon a judgment of the Supreme Court in M.P.Electricity Board v. Jagdish Chandra Sharma reported in 2005 SCC (L & S) 417. In that case, the Supreme Court held that power under Section 11-A will have to be used judiciously and case of assault against another employee or superior, no sympathy could be shown. It cannot be held to be either harsh or disproportionate.


15. The learned counsel also placed reliance upon a judgment of the Supreme Court in Onkar Nath Misra v. State of Haryana and another reported in 2005 SCC (L&S) 445, wherein the Supreme Court held that Gherao of and injury caused to officers of the company, the Labour Court should not interfere with the proportionality of the punishment.


16. Per contra, Mr.Nazrulla, learned counsel for the Workman referred to the judgment of a Division Bench of this Court in M.Rajamanickam v. Bharat Heavy Electricals Ltd. And another reported in 1997 2 L.L.J. 408. In that case, the Division Bench held that if two workmen are similarly placed and punishment is given to only one workman that would amount to clear case of discrimination. In such cases punishment imposed on one workman is disproportionate and it will be violative of Article 14 of the Constitution of India. In that view of the matter, punishment granted to the workman in that case was set aside as it was held to be a hostile discrimination.


17. In the light of the rival contentions made by both parties, the question arises for consideration is whether the Award of the Labour Court requires any interference/modification.


18. In the present case, it is an admitted fact that the petitioner- Railways did not conduct any enquiry and took advantage of the power vested on them under Article 311(2)(b) of the Constitution. Since the constitution itself provides that if it was not reasonably practicable to hold an enquiry, then it can be dispensed with by recording reasons. There is no doubt that the Railways have such power. But that exercise of the said power was set aside by the CAT on the ground that the discretion exercised was improper. Therefore, the matter was remanded to the Railways for a fresh disposal. On such remand, the Railways did not conduct any enquiry though it was observed by the CAT that because of the time lag between the incident and the order of the Tribunal, the Railways may consider conducting of an enquriy. When the Railways did order for an enquiry, but for reasons best known to them, they abandoned the enquiry. Instead they relied upon the judgment of the criminal court which led to the conviction of the Workman and allowed him to go on probation.


19. In effect while passing the penalty of removal, the Railways once again exercised power under Article 311(2)(a) of the Constitution, wherein a person can be removed from service on grounds of conduct which led to his conviction on a criminal charge. Therefore, the Railways did not want to take the logical step of conducting an enquiry and recording materials against the workman. On the contrary without conducting an enquiry, they took advantage of the criminal conviction, though the Workman was let on probation.


20. The Supreme Court in Union of India v. Parma Nanda reported in (1989) 2 SCC 177 has held that a High Court or a Tribunal can interfere with the proportionality of punishment as the workmen had not been heard on the quantum of penalty before dismissal. In paragraphs 26, 29 and 30, it was observed as follows:


"26. So much is, we think, established law on the scope of jurisdiction and the amplitude of powers of the Tribunal. However, of late we have been receiving a large number of appeals from the orders of Tribunals ? Central and States ? complaining about the interference with the penalty awarded in the disciplinary proceedings. The Tribunals seems to take it within their discretion to interfere with the penalty on the ground that it is not commensurate with the delinquency of the official. The law already declared by this Court, which we reiterate, makes it clear that the Tribunals have no such discretion or power.


29. We may however, carve out one exception to this proposition. There may be cases where the penalty is imposed under clause (a) of the second proviso to Article 311(2) of the Constitution. Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under clause (a). This power has been conceded to the court in Union of India v. Tulsiram Patel where Madon, J., observed: (SCC pp. 501-02, para 127)


?[W]here a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be.... The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the government servant concerned. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in. appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court?s power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India11 this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.?


30. The last contention that the respondent falls into the category of a workman and the Tribunal could exercise the powers of an industrial court for giving appropriate relief is unavailable in this case, since the respondent had made his choice of forum and was even otherwise dealt with under the Government Servants (Conduct) Rules which are undisputedly applicable to him."


21. Therefore, in the present case, it has to be seen whether the penalty imposed on the petitioner was disproportionate. The Tribunal was persuaded to accept that Loganathan was a similarly placed person where the petitioner/Railways had shown leniency after reducing him in rank. In the present case, the Tribunal after noticing that there was disproportionality on penalty, it ordered reduction in rank for a period of three years and also deprived full backwages, considering the fact that the criminal court itself had let off the Workman as being first offender and also the fact that he had worked since 1972.


22. This Court do not think that the Tribunal had exceeded its jurisdiction in ordering reduction in rank with full deprivation of backwages. Though this Court had granted alternative relief viz., it was open to the respondent to reinstate the workman, in order to avoid reinstatement, the Management of the Railways took advantage of paying Rs.2500/- being last drawn pay (though during the interregnum, there were several revisions of scale of pay) and continued to pay till February 2009. For reasons best known to them, they had abruptly stopped the payment without any orders from this Court. In any event, in view of the fact that the workman had reached the age of superannuation during February 2009, the possibility of the workman going back to work is not feasible. Therefore, considering the overall circumstances of the case, this Court is not inclined to interfere with the impugned Award passed by the Tribunal.


23. The claim made by the workman in W.P.No.7635 of 2001 claiming full wages for the period also cannot be countenanced by this Court since the Labour Court had made a judicious balancing regarding backwages. Infact as part of moulding the relief, the Tribunal not only reduced the rank of t

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he petitioner for three years but also deprived his full backwages as a measure of punishment. It that portion is modified, then the workman will escape without any punishment. In Reetu Marbles v. Prabhakant Shukla reported in 2010 (1) MLJ 1313 (SC) in paragraph 13, the Supreme Court held that although it noticed the principle that the payment of backwages having a discretionary element involved in it, has to be dealt with in the circumstances of each case and a straight jacket formula can be evolved. In the present case, the Tribunal had exercised its discretion properly. Therefore, there is no merit in the writ petition filed by the workman. 24. In view of the dismissal of the writ petition filed by the Workman and the Award being confirmed, the workman is at liberty to withdraw the amount of Rs.2,50,000/- together with accrued interest lying to the credit of I.D.No.37 of 1996. It is also open to the workman to apply for the terminal benefits which he is entitled to, consequent upon his reaching the age of superannuation. However, from the date of Award till the date of his retirement, he is not entitled for any further payment except what was paid as monthly wages at Rs.2500/-. While calculating the terminal benefits, the Railways will give notional fitment, as if he was in service all along. His last drawn wages will be calculated as if he had continued in the post of AC-Coach Attendant at the time of his superannuation and fix his pay, DCRG, pension and other terminal benefits. Though a doubt may arise about the reduction in rank as ordered by the Tribunal for the post of Khalasi was not given effect to since the Railways did not allow him to work that did not happen. But the present order restricts his wages paid under Section 17-B and his full wages was not given. The loss of office will be adjusted against the loss of full monetary benefits to the workman. 25. In the result, both the writ petitions will stand dismissed with the above direction. No costs.
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