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Section 11A in The Industrial Disputes Act, 1947
The Industrial Disputes Act, 1947
Article 226 in The Constitution Of India 1949
Section 2 in The Sick Industrial Companies (Special Provisions) Act, 1985
Palghat Bpl & Psp Thozhilali Union vs Bpl India Ltd. & Anr on 7 September, 1995

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Andhra High Court
Voltas Limited - Allwyn Unit, Rep. ... vs 1.Additional Industrial ... on 6 June, 2011

THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY

WRIT PETITION NO.26840 of 1998

06-06-2011

Voltas Limited - Allwyn Unit, rep. by its Chief Executive,Hyderabad.

1.Additional Industrial Tribunal-cum-Additional Labour Court, Presiding Officer, Hyderabad.

COUNSEL FOR PETITIONER: MR. M.S.RAMACHANDRA RAO

COUNSEL FOR RESPONDENT No.2: MR. S.RAVINDRANATH

:ORDER:

This writ petition has been filed by Voltas Limited-Allwyn Unit, represented by its Chief Executive, seeking a writ of certiorari calling for the records from the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad relating to the Award passed in I.D.No.48 of 1996 dated 30.6.1998 and quash the same.

2. Background facts, in a nutshell, leading to filing of this writ petition by the Voltas Limited, are:-

The petitioner is a company incorporated under the Companies Act, 1913, as a company limited by shares. M/s. Hyderabad Allwyn Limited had become sick and its accumulated losses had exceeded Rs.180 crores as on 31.3.1993. The matter was referred to the Board for Industrial and Financial Reconstruction ("BIFR") under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985. The `BIFR' at its meeting held in January 1993 declared M/s.Hyderabad Allwyn Ltd., as a sick industry and appointed IDBI as an operating agency to prepare a rehabilitation scheme. The Government of Andhra Pradesh, vide G.O.Rt.No.384, dated 31.3.1993 agreed to amalgamate Hyderabad Allwyn Limited with Voltas Limited, taking due cognizance that Voltas Limited would retain only 5000 employees. K.Jagan Mhan Rao-2nd respondent is one among the 5000 employees absorbed by the Voltas Limited. The BIFR, vide proceedings dated 4.4.1994, sanctioned a scheme of amalgamation of Hyderabad Allwyn Limited with Voltas Limited. Pursuant to the scheme sanctioned by BIFR, the Refrigeration and Appliances division of erstwhile Hyderabad Allwyn Limited was merged with Voltas Limited. The Watch Division of erstwhile Hyderabad Allwyn Limited was formed into a new company as Allwyn Watches Limited and the Auto and Bus Body division was formed into a new company called Allwyn Auto Ltd. Consequent to the scheme of Amalgamation as approved by the BIFR, M/s.Hyderabad Allwyn Limited ceased to be in existence.

3. The 2nd respondent-workman was appointed as a Trainee in Hyderabad Allwyn Limited on 5.5.1986 for a period of one year and subsequently his services were confirmed in the year 1987. The petitioner company carried on three shifts and the work force was distributed among the three shifts. The 2nd respondent- workman was posted in the General Shift, i.e., from 8.30 AM to 5.00 PM during the week from 28.8.1995 to 2.9.1995. He disobeyed the specific instructions and attended the third shift from 10.00 PM to 6 AM during the week period from 28.8.95 to 2.9.95. He was not allotted any work in the third shift since his attending the third shift was contrary to the specific instructions and as such he was marked absent for the entire week. On 3.9.1995, at about 8.15 A.M., when the Supervisor V.Satyanarayana was allotting work to the workers in the general shift, the 2nd respondent went to him and questioned him for marking absence in the general shift. He also asked the Supervisor to reimburse his salary for the period he was marked absent, from his pocket. When the Supervisor refused to grant him attendance for the period of absence, the 2nd respondent started abusing him in filthy language, caught hold of his shirt and slapped him on his right cheek. When the Assistant Manager- N.Venkateshwarlu, who was standing nearby tried to intervene, the 2nd respondent pulled him also.

4. The 2nd respondent-workman was placed under suspension with immediate effect and a charge sheet was issued to him on 4.9.1995. The 2nd respondent submitted explanation under letter dated 6.9.1995. The Management found the explanation not satisfactory and ordered an enquiry and appointed an Enquiry Officer, vide proceedings dated 12.9.95. The Enquiry Officer conducted enquiry after putting on notice to the 2nd respondent as well as the Presenting Officer. The Enquiry Officer submitted his report on 17.11.1995 holding the 2nd respondent-workman guilty of the charges. The 2nd respondent was issued a notice on 16/19-02-1996 proposing punishment of dismissal. The 2nd respondent submitted his explanation to the show cause notice. The management found the explanation not satisfactory and proceeded to impose the proposed punishment of dismissal from service.

5. The 2nd respondent-workman challenged the dismissal by filing I.D.No.48 of 1996 under Section 2(A)2 of the Industrial Disputes Act, 1947 (for short, 'the I.D.Act') before the Labour Court, Hyderabad. The Labour Court held domestic enquiry conducted by the management as valid, by order dated 13.7.1997. Thereafter, the 2nd respondent-workman filed I.A.No.381 of 1997 seeking permission of the Labour Court to lead oral and documentary evidence with regard to his plea of victimization. The said petition came to be allowed. The 2nd respondent-workman examined himself as WW-1. On behalf of the management, its Accounts Officer and Assistant Personnel Officer were examined as MW-1 and MW-2. The 2nd respondent-workman also marked 5 documents on his behalf as Exs.W-1 to W-15. Whereas the management marked 25 documents on its behalf as Exs.M-1 to M-25. The Labour Court upheld the finding of the Enquiry Officer, however, interfered with the quantum of punishment, thereby modifying the punishment of dismissal and directing the management to reinstate the 2nd respondent into service with continuity of service, all other attendant benefits and 50% back wages., by Award dated 30.6.1998. For better understanding, I deem it appropriate to refer paras 11 and 12 of the Award dated 30.6.1998, which read as hereunder:-

"11. Disobedience of the shift arrangement made by the Foreman by the petitioner in not attending the general shift to which he was allotted is apparent and true while the reason given by him that he represented his inconvenience to Leela Prasad, Assistant Manager and the alleged expression of assurance by Leela Prasad is not convincing. The enquiry officer has observed that it became clear in his enquiry that there was no previous enmity. That apart there is no reason warranting the Foreman to falsely allege that he was abused in filthy language and assaulted by a workman. The evidence of Foreman (M.W-1) victim) is cogent and convincing. His evidence is corroborated by the evidence of the Assistant Manager (M.W.2) and the Senior Manager (M.W.3) and proved that the petitioner has abused and assaulted the Foreman. Therefore, I hold that the petitioner has abused and assaulted the Foreman V.Satyanarayana.

12. Learned counsel for petitioner has argued that the punishment of dismissal from service is too harsh for the alleged misconduct and warrants interference of this Tribunal to modify the punishment awarded and canvassed for reinstatement of the petitioner with continuity of service including all attendant benefits and with back wages. Learned counsel for the respondent- management has argued that the misconduct of this kind, if goes without punishment, would create indiscipline and carelessness among the workers and spoil the entire atmosphere and therefore the circumstances warrant punishment to the petitioner. Considering the nature of misconduct and the circumstances under which the said act of misconduct was committed and the fact that the behaviour of the petitioner was good earlier to the incident, even according to the victim (M.W-1), I am of the view that the punishment of dismissal from service is too harsh and therefore deserves to be modified.

In the result, Award is made directing the respondent to reinstate the petitioner into service within one month from the date of publication of this Award, with continuity of service, all other attendant benefits and 50% back wages."

6. Dissatisfied with the denial of 50% back wages, the 2nd respondent- workman filed W.P.No.36962 of 1998 whereas the management filed W.P.No.26840 of 1998 assailing the award to the extent of ordering reinstatement of the 2nd respondent-workman into service with 50% back wages. The writ petition filed by the 2nd respondent-workman came to be dismissed on 27.4.2010. I deem it appropriate to refer the relevant portion of the order passed in the above writ petition, which reads as hereunder:-

" Apart from that, no details as to victimization and unfair labour practice were furnished by the petitioner, except stating that he was dismissed by way of victimization and unfair labour practice. The pleadings raised by the petitioner do not satisfy the ingredients of Clauses (a) to (C )of Section 28 K of the Act in order to come to any conclusion that he was subjected to victimization and unfair labour practice. It is interesting to notice that the petitioner was Vice President, General Secretary and President of the Trade Union. Thus, he was leader of the Trade Union for long time, but he did not take any plea of victimization or unfair labour practice at the first instance and raised the said plea at a very belated stage, which is nothing but a futile effort to impress upon the Labour Court. In so far as the finding that the petitioner was guilty of insubordination and misbehaviour etc., in the light of the evidence available on record, it is difficult for the petitioner to get over such finding arrived at by respondent-management, as confirmed by the Labour Court. The evidence of MW-1-victim and MWs 2 and 3-Assistnat Manager and Senior Manager respectively, clinchingly proves that the petitioner had abused and assaulted MW-1. Absolutely, no contrary evidence was adduced by the petitioner to rebut the said allegation. Except petitioner, no other person was examined on his behalf in this regard.

In the facts and circumstances of the case, I am of the opinion that the findings recorded by the Labour Court confirming the findings of the respondent-management do not call for any interference by this Court under Article 226 of the Constitution of India. In fact, though the charges are very serious in nature and the petitioner was found guilty of the said charges, the Labour Court, in its wisdom, while exercising its powers under Section 11- A of the Industrial Disputes Act and in the facts and circumstances of the case, took a lenient view and held that the punishment of dismissal from service was unwarranted and it is disproportionate to that of misconduct alleged and proved, and thus directed respondent-management to reinstate the petitioner into service with continuity of service, all other attendant benefits and 50% of the back wages.

The writ petition is devoid of merit and liable to be dismissed. It is accordingly dismissed. No order as to costs."

7. The narration of facts as stated supra indicate that the findings recorded by the Enquiry Officer as to misconduct of the 2nd respondent-workman has been upheld by the Labour Court in I.D.No.48 of 1996 as well this Court in Writ Petition No.26962 of 1998. What is questioned in the present writ petition by the Management is the very reinstatement of the 2nd respondent- workman in to service with 50% back wages.

8. In all fairness, the instant writ petition ought to have been disposed of along with the writ petition filed by the 2nd respondent-workman.

9. This Writ Petition came to be listed before Hon'ble Justice Nooty Ramamohana Rao on 11.06.2010. An order came to be passed on 11.06.2010 to post this Writ Petition along with W.P.No.36962 of 1998. For better appreciation, I may refer the order passed on 11.06.2010, which reads as hereunder: "This Writ Petition is directed against an Award passed by the 1st respondent Tribunal in I.D.No.48 of 1996. This Writ Petition has been preferred by the management while the workman who is also aggrieved by that portion of the Award which denied him 50% of the back wages has moved Writ Petition No.36962 of 1998 before this Court. If both these Writ Petitions were heard together, it could have solved the problem of pronouncing two separate opinions. In fact, an order was passed by this Court on 14.08.2008 to list this Writ Petition also for hearing along with Writ Petition No.36962 of 1998. Sri M.S. Ramachandra Rao, learned counsel for the petitioner has brought to my notice that my learned Brother Justice C.V.Ramulu who heard Writ Petition No.36962 of 1998 has pronounced his judgment on 07.04.2010 in the said case. I, therefore, consider it appropriate to obtain orders in this regard from my Lord the Chief Justice for posting this case before my learned Brother Justice C.V.Ramulu."

It appears the Registry obtained orders from the Hon'ble The Chief Justice to post the matter before my learned Brother Justice C.V.Ramulu. Hon'ble Justice C.V.Ramulu, retired on 18.02.2011 consequent on attaining the age of superannuation. Therefore, the matter came to be listed before Hon'ble Justice Ms.G.Rohini. Consequent on change of roaster, this Writ Petition listed before me for disposal.

10. Heard Sri M.S.Ramachandra Rao, learned counsel appearing for the petitioner-Management and Sri S. Ravindranath, learned counsel appearing for the 2nd respondent/workman.

11. Learned counsel appearing for the petitioner-Management submits that the Labour Court having accepted the findings of the enquiry officer, ought not have interfered with the punishment as the proved misconduct is grave. The management lost confidence in the workman for his grave acts of misconduct which has adversely affected the image and reputation of the management and without assigning any reasons, the Tribunal interfered with the punishment imposed on the workman by the management. Therefore, the counsel submits that the award passed by the Tribunal ordering reinstatement with 50% back wages is liable to be set aside. Learned counsel would further contend that the discretion as provided under Section 11-A of the I.D. Act can be exercised only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court or the existence of any mitigating circumstances which require the reduction of the punishment. Learned counsel refers the award passed by the Labour Court in support of his contention that punishment imposed by the management has been modified without assigning any reason or arriving the conclusion that the punishment imposed by the management is shockingly disproportionate to the proved misconduct. It is also contended by the learned counsel that the incident occurred at work place in the presence of the workmen and the said incident indicates highhanded behaviour of the 2nd respondent/workman and it amounts to an act of gross indiscipline, in which case, the punishment of dismissal from service does not warrant interference by the Labour Court. In support of his submissions, reliance has been placed on the following decisions of the Supreme Court:

1) Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh & Anr.1 2) Mahindra and Mahindra Ltd. V. N.B.Narawade2

3) Muriadih Colliery of Bhart Coking Coal Ltd. V. Bihar Colliery Kamgar Union through workmen.3

4) M.P. Electricity Board v Jagdish Chandra Sharma4

5) Hombe Gowda Educational Trust v. State of Karnataka5

12. Learned counsel appearing for the 2nd respondent/ workman submits that the Labour Court had discretion under Section 11-A of the I.D. Act to modify the punishment and rightly exercised its discretion and modified the punishment, and therefore, the Award passed by the Labour Court does not warrant interference of this Court in exercise of jurisdiction under Article 226 of the Constitution of India. Learned counsel would further submit that the incident, even if it is true, has taken place on the spur of moment and therefore, it does not warrant extreme punishment of dismissal from service and the Labour Court has taken into consideration the past conduct of the 2nd respondent/ workman in modifying the punishment, in which case, the award passed by the Labour Court does not warrant interference by this Court in exercise of power under Article 226 of the Constitution of India. In support of his submissions, reliance has been placed on the following decisions:

1) Cotton Corporation of India v. Presiding Officer, Labour Court, Guntur.6 2) Hyderabad Plywood Industries Pvt. Ltd. V Presiding Officer, Labour Court- III.7 and

3) Palghat BPL & PSP Thozhilali Union v. BPL India Ltd. & Anr.8

13. At the cost of repetition, I may state that the Writ Petition filed by the 2nd respondent/workman questioning the denial of 50% back wages ended in dismissal on 07.04.2010. The question involved in this Writ Petition is whether the interference with the punishment by the Labour Court was justified? In other words, the question is whether the punishment imposed was so harsh or so disproportionate to the charge proved, that it warranted interference by the Labour Court?

14. The 2nd respondent/workman was issued a charge-sheet on 04.09.1995 and the charge levelled against him reads as hereunder:

"You were posted in General shift i.e., 8.30 A.M. to 5.00 P.M. with effect from 28.8.95 to 2.9.95 by your department in-charge. But you disobeyed his instructions and attended in IIIrd shift w.e.f. 29.8.95 to 2.9.95 in your own wish. Due to this you were marked absent for entire week, since you have not turned up for the duty as per the shift posting done by your department in charge. On 3.9.95, at about 8.15 A.M. when your supervisor, Mr.V.Satyanarayana, E.No.42192 was allotting work to the department workers in General shift, you went to him and questioned how he has marked absent to him and asked him to reimburse the salary for the period he has marked absent from his pocket. When he refused to mark present for period of absence in General shift, you have started abusing Sri V.Satyanarayana in a filthy language and you also caught hold of his shirt color and slapped him on his cheeks forcibly. You have also pulled Sri S. Venkateshwar Rao, Asst.Manager (Ref) who was present at that time.

Your act of non-adherence of the shift timings, attending the third shift unauthorisedly, abusing your superiors in a filthy language when he has refused to mark present and manhandling your superior in the shop floor are the serious misconduct under clause 1(i) and sub-clause (i) and (x) of the Certified Standing Orders of the Company."

The Enquiry Officer, on considering the evidence brought on record, came to the conclusion that the 2nd respondent/workman manhandled MW.1 and used filthy language against him. The findings recorded by the Enquiry Officer read as hereunder:

"FINDINGS:

Basing on the above observations and also after going through the evidence brought in during the process and after carefully examining them, I find that, a) The CSE on his own and without obtaining proper permission from his superiors concerned, has attended in the shift in which he was not posted. b) The CSE has abused his superior in a filthy language and manhandled his superior in the work-spot."

15. The management considered the enquiry report and issued a final show-cause notice proposing the punishment of dismissal from service. The 2nd respondent/workman submitted his explanation to the final show-cause. The management found it not satisfactory and proceeded to impose the proposed punishment, by order dated 23.03.1996. The 2nd respondent/workman challenged the dismissal from service, by approaching the Labour Court under Section 2-A(2) of the I.D.Act. The Labour Court upheld the domestic enquiry at the threshold and permitted the 2nd respondent/workman to adduce evidence to substantiate his plea of victimisation. The Labour Court considered the evidence brought on record and came to the conclusion that the 2nd respondent/workman failed to substantiate the plea of victimisation. In a way, the Labour Court upheld the finding of the enquiry officer. However, the Labour Court taking into consideration of the past conduct of the 2nd respondent/workman proceeded to interfere with the punishment and modified the same. The modified punishment has been extracted supra.

16. After introduction of Section 11-A of the I.D.Act, a certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The area of discretion is well defined and is not unlimited. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the I.D. Act and reduce the punishment. While exercising its discretionary jurisdiction under Section 11-A of the I.D. Act, it is no doubt open to the Tribunal to substitute one punishment by another but the Tribunal exercises limited jurisdiction in this regard. The jurisdiction to interfere with the quantum of punishment could be exercised only when it is found to be grossly disproportionate and on arriving at a finding that no reasonable person could inflict such a punishment. The Tribunal may furthermore exercise its jurisdiction when relevant facts are not taken into consideration by the management which would have a direct bearing on the quantum of punishment. If the Tribunal decides to interfere with the punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. The Labour Court and the Industrial Tribunal must act within the four corners and in terms of the provisions of the I.D.Act. Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this regard. The jurisdiction, though wide, must be exercised in terms of the provisions of the statue and no other. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on irrational or extraneous factors and certainly not on compassionate grounds. The discretion under Section 11-A has to be used judiciously. The jurisdiction vested with the Labour Court to interfere with the punishment is not to be exercised capriciously and arbitrarily. The power of the Labour Court, under Section 11- A, is not without limitation. There is no such thing as unlimited jurisdiction vested with any judicial or quasi-judicial forum. An unfettered discretion is a sworn enemy of the constitutional guarantee against discrimination. An unlimited jurisdiction leads to unreasonableness. No authority, be it administrative or judicial, has the power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons therefor. The question the Labour Court ought to ask itself, while exercising its discretion under Section 11-A, should be whether there are sufficient reasons for it to come to a reasonable conclusion that the punishment imposed is grossly disproportionate. Only in a case where the satisfaction is reached by the Labour Court or the Tribunal, as the case may be, that there are sufficient reasons to do so, would interference with the order of punishment be justified.

17. The Supreme Court in Hombe Gowda Educational Trust's case (5 supra), has observed that the jurisdiction of the Labour Court/Tribunal under Section 11-A of the I.D.Act, to interfere with the quantum of punishment could be exercised only when, inter alia, it is found to be grossly disproportionate. Such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment. The Tribunal may furthermore exercise its jurisdiction when relevant facts are not taken into consideration by the management which would have direct bearing on the question of quantum of punishment.

18. Keeping in view the proposition of law laid down in the above referred cases, I now proceed to answer the issue involved in this Writ Petition. Two facts are required to be noted. The 2nd respondent/workman resorted to assault the supervisor at the work place. The Labour Court, except recording that the 2nd respondent/workman has no adverse past record, no reasons whatsoever have been assigned in interfering with the order of dismissal passed by the Management. The person who is the victim in the hands of the 2nd respondent/workman is his superior officer. Assaulting a superior at the work place amounts to an act of gross indiscipline. Any lenient view in these circumstances would lead to encouraging indiscipline in the industrial establishment. The Labour Court thoroughly failed to take into account the nature of misconduct of the 2nd respondent/workman. Therefore, the order of the Labour Court in interfering with the dismissal is perverse and the same cannot be sustained.

19. Accordingly, the Writ Petition is allowed setting aside the Award, dated 30.06.1996, passed in I.D.No.48 of 1996 on the file of the Additional Industrial Tribunal-cum-Addl. Labour Court, Hyderabad. No costs.

?1 (2004) 8 SCC 200

2 (2005) 3 SCC 134

3 (2005) 3 SCC 331

4 (2005) 3 SCC 401

5 (2006) 1 SCC 430

6 2006 (5) ALT 318 (D.B.)

7 2004 (4) ALT 251