M ARUNACHALAM Vs. TAMIL NADU ELECTRICITY BOARD

JUDGEMENT

(1.) THE writ petitioner, while he was working as Junior Engineer, Grade-II at R. Pudupalayam was transferred to Thalaivasal Section on 5.6.1987. THE petitioner accepted the transfer and received the travelling allowance of Rs.400 to enable him to join duty in the new place. However, he did not join in the transferred place. He made a request to transfer him to Thanjavur which was negatived by the first respondent. THE petitioner did not join duty even thereafter, but was applying for leave frequently. THErefore, the respondent initiated disciplinary proceedings against the writ petitioner on certain charges and the enquiry was conducted with regard to the charges framed against the petitioner. THE petitioner even after the receipt of the notice for the enquiry did not participate in the enquiry. Several opportunities were granted to the petitioner, but inspite of the same, there was no participation by the writ petitioner in the enquiry. Finally, the notice of enquiry was affixed at the door of the petitioner's house in the presence of one independent witness and the officials of the first respondent. On 15.3.1989, the Enquiry Officer held enquiry ex parte and found that the petitioner was guilty of all the charges. On the basis of the report of the enquiry Officer, a show-cause notice was issued to the petitioner on 5.4.1989 which was received by the petitioner on 15.4.1989. THE petitioner submitted his explanation on 18.4.1989. But, his explanation was found to be not convincing and the Superintending Engineer, Salem Electricity Distribution Circle, Salem passed an order imposing punishment of removal from service. THE petitioner filed an appeal before the Chief Engineer and the appellate authority also upheld the order of removal of the petitioner from service. THE petitioner, thereafter, approached the Labour Court in I.D.No.434 of 1994 under Sec.2A (2) of the Industrial Disputes Act. THE main contention of the writ petitioner before the Labour Court was that the notice regarding the charge sheet was not served on the petitioner properly and the enquiry was conducted behind his back and the order of removal from service was arbitrary. THE order shows that learned counsel who appeared for the petitioner before the Labour Court conceded that it cannot be stated that the enquiry conducted by the Enquiry Officer was not proper and that he would confine his argument only to the quantum of punishment. He also filed a memorandum before the Labour Court stating that the claim would be restricted to the punishment aspect of the order of dismissal. THErefore, he submitted, considering the family circumstances of the petitioner, the petitioner should be given the benefit of reinstatement of service, and the claim for backwages was not pressed. THE Labour Court considered the arguments of the respondent that except the imputation found in the charge memo, there were no other proceedings against the writ petitioner and the writ petitioner was not involved in any demonstration or any other activities causing loss to the property of the first respondent. Considering the family circumstances of the petitioner, the Labour Court ordered reinstatement with continuity of service, but the payment of backwages was denied to the petitioner.

(2.) THE writ petitioner has challenged the award on the ground that the order passed by the Labour Court denying the benefit of backwages as illegal. THE first respondent has contested the claim of the writ petitioner on the ground that having conceded before the Labour Court, that he would be satisfied with the order of reinstatement, it is not open to the petitioner to challenge that part of the order denying backwages. According to the first respondent, the petitioner has not challenged the domestic enquiry or the conclusion arrived at in the domestic enquiry and having accepted the domestic enquiry, it is not open to the petitioner to get any relief of backwages.

(3.) HOWEVER, it is necessary to consider the arguments of the learned counsel for the petitioner. The first submission of the learned counsel for the petitioner is that the finding of the Labour Court is that the punishment of removal from service was certainly disproportionate to his misconduct and after arriving at this finding, the Labour Court should have ordered for payment of full backwages. According to the learned counsel for the petitioner, though the petitioner was ordered to be reinstated, the question of granting backwages should follow the order of reinstatement of service. He relied upon a decision of the Supreme Court in Hind Construction and Engineering Co. Ltd. v. Their Workmen, (1965)1 L.L.J. 462 wherein the Supreme Court held as under:"It is now settled law that the tribunal is not to examine the finding or the quantum of punishment because the whole of the dispute is not really open before the tribunal as it is ordinarily before a Court of appeal. The tribunal's powers have been stated by this Court in a large number of cases and it has been ruled that the tribunal can only interfere if the conduct of the employer shows lack of bona fides or victimization of employee or employees or unfair labour practice. The tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding, but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all. In respect of punishment it has been ruled that the award of punishment for misconduct under the standing orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed, the tribunal should not interfere. The tribunal is not required to consider the propriety of adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. These principles can be gathered from the following cases:Bengal Batdee Coal Company Ltd., v. Ram Prabesh Singh and others, (1963)1 L.LJ. 291, Bunckingham and Carnatic Mills Ltd. v. Their Workmen, (1951)2 Lab.L.J. 314, Titaghar Paper Mills Company Ltd v. Ram Naresh Kumar, (1961)1 L.L.J. 511, Doom Dooma Tea Company v. Assam Chah Karamchari Sangh, (1960)2 L.L.J. 56, Punjab National Bank Ltd. v. Their Workmen, (1960)1 S.C.R. 806: A.I.R. 1960 S.C. 160: (1959)2 L.L.J 666, Chartered Bank, Bombay v. Chartered Bank Employees Union, (1960)2 L.L.J. 222."Learned counsel for the petitioner also placed strong reliance on another decision of the Supreme Court in Hindustan Tin Works Ltd., v. Its Employees, (1978)2 L.L.J. 474 wherein the Supreme Court held as under:"Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the grant of litigation, his capacity to sustain himself through the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupifying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly underserved. Ordinarily, therefore, workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be premium on the unwarranted litigative activity of the employer. If the employer terminate the service illegally and the termination is motivated as in this case viz., to resist the workman's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages.'He also placed reliance on a decision on Andhra Pradesh High Court in Indian Airlines v. A.Phillips, (1989)2 L.L.J.86 wherein the Andhra Pradesh High Court held as under:'....Where the Labour Court finds that the termination of the service is not justified awarding of full back wages is the normal rule. The burden of showing that the normal rule should not be followed and that the employee should not be awarded full back wages, is on the employer. Where the employee was gainfully employed during the enforced idleness, this factor has to be taken into consideration in granting backwages. Where there has been considerable delay in raising an industrial dispute, the normal rule of awarding full backwages will not be justified. When the Tribunal finds that the termination of service is unjustified, the question of awarding of backwages is in the discretion of the Tribunal. That discretion has to be exercised judicially in judicious manner and it should not be in capricious or arbitrary manner. In exercising the discretion, the Tribunal has to take into consideration the factors like harshness of the punishment, period during which the employee was kept out of employment due to no fault attributable to him, nature of the charges levelled against him and the delay in raising the industrial dispute.'.