ESWARAN Vs. III ADDL LABOUR COURT MADRAS

JUDGEMENT

(1.) KANAKARAJ, J. The second respondent had entered the services of the appellant company on August 19, 196 5 in the Security Department. On June 11, 198 0 at about 7. 00 a. m. the Assistant Security Officer had allocated the work of the second respondent between 23 hours on June 11, 198 0 and 07 hours on June 12, 198 0. The second respondent was posted at the main gate of the Switchgear factory. Apparently irked by the place of posting the second respondent is said to have used vulgar and bad language against his superior officer. A charge memo was issued in this connection on June 14, 198 0. An enquiry was conducted and on perusal of the report of the enquiry Officer, the appellant management decided not to continue the services of the second respondent, especially because of his previous conduct. The second respondent is said to have received all the amounts due to him including the provident fund and gratuity amounts. The second respondent also wanted a service certificate, apparently to enable him to seek employment elsewhere. However, the second respondent is said to have sought for a reference under the industrial Disputes Act, 1947 (in short'the Act') and by G. O. Ms. No. 1852, dated September 6, 198 2 , the government referred the case for adjudication by the first respondent. The question referred to the first respondent was'whether the non-employment of thiru A. C. Munuswamy is justified, if not, to what relief he is entitled to ". To compute the relief, if any awarded in terms of money, if it can be so computed". The first respondent passed an award, dated September 5, 198 5 and held on the basis of an endorsement made by both parties that the Labour Court may pass final orders on merits on the basis of the evidence adduced, that the charge against the second respondent had been clearly proved and established. On the question of punishment, the Labour Court noticed that the management had taken into account, the past records of the second respondent before passing the final order of dismissal. Accordingly, the first respondent came to the conclusion that there was no reason to interfere with the order of dismissal passed by the management. He also held that the punishment was not excessive or disproportionate to the charges, having regard to the past record of the second respondent. Aggrieved by this award, the second respondent filed a Writ petition No. 87so of 1986 and a learned single Judge of this Court by Judgment, dated November 20, 199 6 held that the punishment for the proved misconduct was excessive and that it could not stand to legal scrutiny. While allowing the said writ petition, the learned single Judge gave as many as seven directions, which are extracted below : 1. The Management is directed to reinstate the workman within thirty days from today unless he attained the age of superannuation;

(2.) IN case the workman attained the age of superannuation and retired from service, the management is directed to calculate the monetary benefits with his date of retirement;

(3.) IT is hereby ordered that there is no question of granting time for the management for payment of the above said amounts as ordered by this Court to the workman. "2. The management has come up in Appeal against the said Judgment in writ Petition No. 8780 of 1986. 3. Before coming to the merits of the case, we have to refer to the admitted fact that the second respondent had attained the age of superannuation on August 8, 1991. Therefore, this aspect of the case has got to be kept in mind, while passing final orders in the writ appeal. 4. Mr. N. Balasubramanian, learned counsel appearing for the appellant management argues that as per Section11a of the Act, it is for the Labour Court to evaluate the severity of punishment and this Court, exercising jurisdiction under Article 226 of the Constitution of India cannot lightly interfere with the order of the Labour Court. Secondly, he points out that under sub clause 6 of clause 24 of the Standing Orders, the management is entitled to take the previous record of the employee at the time of awarding punishment. That sub clause 6 of clause 21 is as follows :" * In awarding punishment under this standing order, the punishing authority shall take into account the gravity of the misconduct, the previous record, or aggravating circumstances that may exist. "5. On the other hand, learned counsel for the second respondent argues that the previous record of the employee, if taken into account to the prejudice of the employee, the employee should be put on notice and an opportunity should be afforded and his explanation has to be obtained. In this case, before imposing the punishment, the appellant management did not inform the second respondent that they were taking note of the previous bad record for the purpose of imposing the extreme penalty of dismissal. He therefore says that the entire issue has to be decided on the basis of the charges proved in the instant case and whether those charges warrant the punishment of dismissal. Looked from this angle, there is absolutely no irregularity in the order of the learned single Judge, when he holds that the punishment is grossly excessive. 6. We have carefully considered the rival arguments and we find that the law on the point is no longer res integra. Before adverting to the legal position, we would do well and refer to the undisputed findings of the Labour Court. So far as the domestic enquiry is concerned, the Labour Court held as follows :" * Hence there is no force in the contention of the worker that he was not given any opportunity to cross examine the management's witnesses. . . " Again the Labour Court observed thus : " The worker miserably failed to establish that the enquiry officer violated any principles of natural justice. "thereafter, the Labour Court referred to the endorsement made by both the counsel and analysed the evidence available before him and then came to the conclusion that the charges had been proved. These findings of facts are not in dispute before us. The order of dismissal, dated july 15, 1980 clearly shows that the past record of the second respondent had been taken into consideration to the prejudice of the worker. Observed the management in the order of dismissal as follows :" * The management has also observed from your past record that you have been warned for a similar behaviour on an earlier occasion apart from having been fined Rs. 40/- by a Magistrate for a criminal offence outside the gates of the company namely disorderly behaviour in a public place. "therefore, it is clear that extreme penalty was ordered only because of the past record of service relating to certain warnings issued to the worker. We will first refer to the decision on the question whether a notice should be given to the worker before taking the past record to the prejudice of the worker. In Mgmt. of M. F. L. v. P. O. I. Addl. Labour court etc. , (1990-I-LLJ- question has been well and truly decided. On facts, the said case was almost identical to the case before us. In that case also, the Labour Court came to the conclusion that the charge of misconduct had been proved and that the employee's past record of service warranted the order of dismissal. The Labour Court therefore, confirmed the order of dismissal, on a writ petition being filed that the past record of service should not have been taken into account, because no notice was issued to the worker. Therefore, the learned single Judge directed reinstatement, but denied the employee the backwages from the date of termination of service upto the date of publication of the award of the Labour Court. Both the management and the worker filed writ appeals. The Division Bench of this Court observed as follows at P. 301 : 5. " * Consideration of the past record of service has very much gone into the mind of the management on the question of punishment, and the employee had been denied the opportunity to make his say and offer his explanation on this question. As to how far the employee would have succeeded in persuading the management to view the matter leniently and not to indulge in imposing the extreme penalty of dismissal from service, we cannot by ourselves guage. When we view this question from the above angle, we cannot take exception to the opinion expressed by the learned single judge that when there was an omission on the part of the management to put the employee on notice of the move on the part of the management to take into consideration the past record of service of the employee in the matter of imposition of the punishment, there was a violation of the principles of natural justice and the same error had crept into the thinking on the part of the Labour Court. The vitiating factor was the denial of opportunity to the employee to explain the past record of service at the appropriate time. That has nullified the resultant action. Thereafter the matter has to be viewed untainted by the past record of service. This vitiating factor will not stand mollified by affording an opportunity at the subsequent stage. This has been duly taken note of by the learned single judge, and in our view, the learned Single Judge rightly eschewed the past record of service of the employee in the matter of consideration of the punishment to be imposed. "the above decision is also authority for the proposition that the High Court, while exercising powers under Article 226 of the Constitution of India could interfere with the decision of the Labour Court under Section11 A of the Act. Observed the Division Bench of this Court at p. 301 :" * 6. The second point urged by Mr. Sanjay Mohan, Learned counsel for the management, is that the learned single Judge, while exercising writ jurisdiction, ought not to have interfered with the discretion exercised by the Labour Court under Section11 A of the Act and exercised that discretion himself. This is an erroneous thinking about the powers of this Court in writ jurisdiction. What the Labour Court should do and when there is an omission on the part of it to do that, this court, in exercise of the powers under Article 226 of the Constitution of India, can certainly do. This is a proposition which has been countenanced by pronouncements of Courts, including of the highest in the land. "there is no need or necessity to multiply the decisions on the point, except to refer to a Division Bench of the Karnataka high Court, to which one of us, my Lord the Chief Justice was also a party. That decision was so rendered in B. Nagaraju v. Karnataka S. R. Transport corpn. & Another (1993-II-LLJ-527 ). Learned counsel for the appellant referred to a Division Bench Judgment of this Court in Engine Valves Ltd. v. L. C. , Madras & Anr. (1991-I-LLJ-372 ). That Judgment brings out the difference between the past record of service being taken into account for the purpose of mitigating or extenuating the gravity of the charges in favour of the worker. IT is only in such cases, the Standing Order enables the the management to take a unilateral decision in favour of the worker by referring to his past meritorious service. Similarly, the Judgment of the Apex Court in Associated cement Co. Ltd. v. T. C. Srivastava & Ors. (1984-II-LLJ-105) has no application because the ratio decided in that case is set out in the very first line as follows :" * The principal question raised for our determination in these appeals is whether on its proper construction the Certified Standing order 17 provides for second opportunity being given to a workman after conclusion of the enquiry into his misconduct and before inflicting on him the punishment of dismissal and if so whether the enquriy gets vitiated by not affording him such opportunity "" 7. Therefore, on the second question argued by Mr. Balasubramanian, we have no hesitation in holding that in this case, the past record of service having been taken into account only for the purpose of imposing the extreme penalty, the order of punishment is vitiated because no notice was given to the worker before taking into account the past record of service to the prejudice of the worker. This is a legal infirmity in the order of dismissal as well as in the award of the Labour Court. This legal infirmity is sufficient to interfere with the Judgment of the Labour Court in proceedings under Article 226 of the Constitution of India. We also find that the learned single Judge of this Court while holding that the punishment is excessive, had given several directions, which are not warranted especially because the worker had attained the age of superannuation on August 8, 1991 and also for the reason that some punishment is necessary for the proved charges of using filthy language against a superior officer.