IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 OP.No. 6731 of 1999(B) ---------------------- PETITIONER(S): --------------- GENERAL SECRETARY, COCHIN PORT LABOUR UNION (CITU), COCHIN-682 009. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): --------------- 1. GENERAL MANAGER, M.G.F. INDIA LTD., M.G. ROAD, COCHIN – 682 011. 2. STATE OF KERALA REP. BY ITS SECRETARY, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. LABOUR COURT, ERNAKULAM. 4. T.V. BALAKRISHNAN NAIR, KUNNEL VEEDU, KARIMAN P.O., THIRUVANANTHAPURAM, PIN.632 002. ADV. SRI.K.ANAND (A.201) SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU GOVERNMENT PLEADER SRI. M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 6731/1999. ------------------------------------------------------------- EXT.P1 COPY OF AWARD OF LABOUR COURT, ERNAKULAM IN I.A.NO. 178/93, DT. 14-10-1998. EXT.P2 AWARD OF LABOUR COURT, ERNAKULAM IN I.D.178/93 DT. 29-11-1995. EXT.P3 JUDGMENT IN O.P.NO. 7240/1996. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 6731 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 16th October, 2008. J U D G M E N T The Union in I.D. No. 178/1993 before the Labour Court, Ernakulam is the petitioner herein. The Union is challenging Ext. P1 award passed by the Labour Court in that I.D. The issue referred for adjudication was: “Whether the dismissal of S/Sri. N. Krishnan Nair and T.V. Balakrishnan Nair is justifiable or not? If not, what relief they are entitled to.” 2. The dismissal of the two workmen were after conducting a domestic enquiry into certain allegations of misconduct charged against them. Therefore, the Labour Court first considered the validity of the enquiry as a preliminary point and upheld the enquiry as also the findings of guilt entered in the enquiry. Thereafter, by Ext. P2 award, the Labour Court directed reinstatement of the workmen treating them as under suspension for a period of one year as punishment without any wages. Ext. P2 award was challenged by the management before this Court and the matter was remanded to the Labour Court for fresh consideration. Accordingly, the Labour Court considered the matter afresh and found that the workman Sri. T.V. Balakrishnan Nair is entitled to be reinstated with 75% backwages. 3. As far as the other workman is concerned, namely, Sri. N. Krishnan Nair, the Labour Court converted the punishment of dismissal into discharge, but did not give any other relief to the workman. The Union is now aggrieved by the punishment imposed on Sri. N. Krishnan Nair. Incidentally, it may also be noted that the management had earlier challenged Ext. P1 award by filing O.P.No. 2072/1999, which was dismissed with liberty to the workman to continue to prosecute this original petition. Although the management and T.V. Balakrishnan Nair filed W.A.Nos. 1196 and 1198 of 2003 against that judgment, those writ appeals were also W.P.C. No. 6731/1999 -: 2 :- dismissed. Consequently, the only question that remains to be considered is as to whether the punishment of discharge imposed on the workman Sri. N. Krishnan Nair is sustainable or not? 4. Essentially, the question as to whether the punishment is proportionate to the gravity of the misconduct would depend upon the charges proved against the workman. Three charge sheets were issued to the workman on 24-9-1991, 7-10-1991 and 10-10-1991. In the charge sheet dated 24-9-1991, the charges were as follows: “In the morning of 21st September 1991, after reporting for duty, they demanded holiday, which when refused they pushed the staff members from their working seats, abused them in filthy language and thereafter pulled the telephone cords and took possession of the telephone and prevented the staff from communicating with the manager. They further physically stopped the staff and pushed them back when they tried to contact the Manager by going upstairs. The staff were threatened that if they do the work they will be dealt with properly. However, the situation was brought under control by the timely intervention of police.” In the charge memo dated 7-10-1991, the charge against the workman was that when a vehicle was brought for repair on 1-10- 1991, he obstructed the mechanic from carrying out the work. The charge in the charge memo dated 10-10-1991 was that he along with some other employees trespassed into the office of the manager, used filthy language threatening the staff and when one of the staff by name Ravikumar was doing work, he was intimidated by telling him that he would be done away with resulting in allegedly unlawful loss to the management and confusion among the staff. 5. The contention of the Union is that the second and third charge sheets were also a sequel to the first charge sheet. The workman was the secretary of the Union. What happened on 24-9- 1991 was interference by the workman in the cause of the workmen as a whole in his capacity as secretary of the Union. That being so, what he was doing was only collectively bargaining, which cannot be W.P.C. No. 6731/1999 -: 3 :- termed as a misconduct at all is the contention of the counsel for the Union. Counsel for the Union would further contend that even otherwise, the misconducts alleged are not serious enough to warrant the imposition of punishment of dismissal. Counsel would also submit that the workman had 18 years of unblemished service with the management. Counsel also refers to three decisions of the Supreme Court in Rama Kant Misra v. State of U.P. and others, AIR 1982 SC 1552, Ved Prakash Gupta v. M/s. Delton Cable India (P) Ltd. AIR 1984 SC 914 and Scooter India Limited, Lucknow v. Labour Court, Lucknow and others, AIR 1989 S C 149. He would submit that the charges against the workman in the first two decisions were somewhat similar to the misconduct alleged against the workman herein and therefore those decisions should be taken as a yardstick for deciding the validity of the punishment of the workman in this case. Counsel would also argue that the Supreme Court has in the third decision affirmed the necessity to adopt a reformatory attitude in respect of imposition of punishment on delinquent workmen especially when the charges of misconduct are not that serious and the workmen did not have any previous record of misconduct. 6. On the other hand, the learned Counsel for the management would rely on two decisions, one of a Division Bench of this Court in W.A.No. 991/2005 and another by the Supreme Court in Hombe Gowda Educational Trust and another v. State of Karnataka and others, (2006) 1 SCC 430. He points out that in the Division Bench decision of this Court, after referring to several Supreme Court decisions on the point, this Court had held that punishment of dismissal for using abusive language against a superior officer cannot be held to be disproportionate. By reading from the judgment in Hombe Gowda's case (supra), counsel for the management would W.P.C. No. 6731/1999 -: 4 :- submit that the Supreme Court has held that the recent trend in the Supreme Court's view is to enforce discipline among the workforce in industrial establishment and called for a more stricter view in the matter. Counsel would therefore seek for dismissal of the original petition. 7. I have considered the rival contentions in detail. 8. It is true that prior to 1990's, in such matters, Supreme Court used to take a more lenient view in the matter of imposition of punishment on delinquent workmen. Consequently, the Supreme Court always took a favourable view in favour of the workmen in the matter of imposition of punishment. But, of late, the Supreme Court has changed its view. In fact, in Hombe Gowda's case (supra), the Supreme Court has held thus: “This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workman was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to this Court was bound to follow the decisions of this Court which are applicable to the facts of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same.” As such, the Supreme Court has stressed the necessity to strictly enforce discipline among workforce and called for stricter punishments in the matter of indiscipline. Here, in this case, the workman, in the name of claiming a holiday for the entire workforce, W.P.C. No. 6731/1999 -: 5 :- abused the members of the staff in filthy language and acted in a riotous and disorderly fashion as is clear from the charge sheet. Again, he took a defiant attitude towards the management and obstructed the mechanic from carrying out repair of a vehicle for which the same was brought into the management's establishment. Still later, he, along with other employees, trespassed into the office with filthy language threatening the staff and even intimidated one of the staff by telling him that he would be done away with, I am of opinion that these are very serious misconducts. When the Supreme Court holds that use of filthy language itself would be sufficient to impose the punishment of dismissal from service, I do not see how a lenient attitude can be taken in this case, wherein the workman has committed far more serious misconducts. The imposition of punishment on a workman on his being found guilty is essentially a managerial function. The Labour Court or this Court cannot lightly interfere with such punishments imposed by the management, unless the punishment is so disproportionate to the gravity of the misconduct that the same shocks the conscience of the Court, which is the law laid down by the Supreme Court. In this case, looking at the misconducts alleged against the workman, I do not find any such circumstances which would lead to the conclusion that the punishment of dismissal for such misconducts is shockingly disproportionate to the gravity of the misconduct. Therefore, I do not find any merit in the contentions of the petitioner. As such, I am not inclined to interfere with the award and accordingly the writ petition is dismissed. sd/- S. Siri Jagan, Judge. Tds/ W.P.C. No. 6731/1999 -: 6 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 6731 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 16th October, 2008.