IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.09.2009 CORAM THE HON'BLE MR. JUSTICE M.M.SUNDRESH Writ Petition No.1490 of 2002 The Management of Neycer India Limited, (Sanitaryware Division) Vadalur 607 303 Cuddalore District represented by its Vice President (Operations) ... Petitioner /vs/ 1. The Presiding Officer, Labour Court, Cuddalore. 2. S. Kaliselvan, ... Respondents prayer: The writ petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorari, to call for the records of the first respondent in ID No. 115/95 and quash its award dated 11.06.2001. For petitioner .. Mr. T.S. Gopalan For Respondents .. Court (for R1) Mr.T. Dhanyakumar (For R2) ORDER The second respondent herein was working as General Worker with the petitioner. A show cause notice was issued against the second respondent by the petitioner on 21.10.1994 to show cause as to why action should not be taken against him for indulging in the incident. 2. The case of the petitioner is that on 21.10.1994,at about 1.20 p.m, the second respondent has created a scene by pasting a typed wall poster at the workmen cycle shed containing 8 full scape papers with malicious statement against the petitioner company. The further https://hcservices.ecourts.gov.in/hcservices/ allegation is that the second respondent made derogatory remarks in the said wall poster against officers and Directors of the company. In pursuant of the enquiry conducted the petitioner dismissed the second respondent from service holding that the charges levelled against the second respondent have been proved. The second respondent raised dispute before the first respondent and the first respondent has allowed the dispute raised by the second respondent by ordering reinstatement of the second respondent with back wages. Challenging the said award of the labour Court the present writ petition has been filed after reinstating the second respondent. 3. While conducting the enquiry three witnesses have been examined on behalf of the petitioner. Management witness No. 1 is sekar, who is said to have seen the second respondent affixing the posters. However, he has not given any complaint. It is the further case of the first witness that the contention in the posters are also against him and there was an earlier complaint given by him against the second respondent on 14.10.1994. According to the said witness, he has seen the second respondent affixing the posters at 1.20 p.m. 4. M.W.2 is one V. Gangadharan, who has seen the content of the poster at 4 'O' clock in the evening. He also deposed to the effect that certain statements were made in the said poster against him as well. He also says that there was some dispute between him and the second respondent. According to M.W.2, V. Gangatharan, a complaint was given regarding the said incident on the next day, which was on 22.10.1994. 5. M.W.3 K. Jayaraman, is the security guard, who was incharge of the petitioner company at that point of time. In Ex.M6, he gave a complaint through the security guard to the management on the date of occurrence, which was on 21.10.1994. He also deposed that he has read the content and seen the second respondent affixing the poster. 6. The labour court has allowed the dispute in favour of the second respondent by holding that the first witness has not given any complaint and no evidence has been let in about the fate of the earlier complaint given by the first witness. The Labour court also holds that there is dispute between the second respondent and the first witness prior to the occurrence. Similarly, the labour court finds that there was dispute between the second respondent and the second witness. In so far as the third witness is concerned the labour court found that he is an interested witness since he was incharge of the company at that point of time. 7. The labour court has given findings that in view of the fact that the witnesses state that there are other independent witness available no explanation has been given to the court, as to why the other independent witness have not been examined. The labour court also gave a finding that there is discrepancy in the timing mentioned https://hcservices.ecourts.gov.in/hcservices/ by the witness regarding the alleged occurrence. The labour court has found that the petitioner had not marked the negative of the photographs. Apart from the same, the labour court has found that the affected persons have not given a complaint namely, the first witness one Sekar. 8. In far as the second witness is concerned the labour court also found that regarding the past incident no complaint has been given by him. Similarly, the labour court also found that the security officer to whom the third witness gave the complaint has not been examined. Therefore, in the absence of corroboration of the evidences of three witnesses, their evidence cannot be accepted. The labour court has also further held that in the absence of examination of senior officials it cannot be presumed that the reputation of the management was spoiled due to the acts of the second respondent. Therefore, based upon the above said reasoning, the labour court has allowed the dispute raised by the second respondent. 9. The labour court has also observed that the third witness has not stated about the presence of other witnesses in the complaint. The learned counsel for the petitioner submit that the labour court has committed an error in exercising the power under section 11A of the Industrial Disputes Act. According to the learned counsel without giving a finding about the decision taken by the petitioner, as perverse arbitrary and as well as based upon no evidence, the labour court cannot substitute its views for the past enquiry. 10. The learned counsel further submits that the reasoning given by the labour court for differing with the evidence of MW 1 to MW3 are not proper, since, merely because M.W.1 and M.W.2 had some grievance against the third respondent their evidence cannot be rejected. He had further submitted that the reasoning given regarding discrepancy of the timing actually is incorrect since what was mentioned by M.W.1 and M.W.2 pertains to an earlier incident. The learned counsel also submitted that mere non production of the negatives cannot be a ground to reject the case of the petitioner. In view of the available other materials, the labour court ought to have dismissed the dispute. 11. In support of this contention the labour court has wrongly exercised the power under section 11A of the Industrial Disputes Act. The learned counsel for the petitioner has relied on a decision reported in 2006 AIR Supreme Court 2730 and 2007 (3) L.L.N. 128. 12. The learned counsel has also submitted that in any case the petitioner company being a sick industry the second respondent ordered backwages, which is not proper even assuming that the writ petitioner is liable to be dismissed on merits. In support of the said contention, the learned counsel relied upon the judgment reported in (2009) 5 Supreme Court Cases 705. https://hcservices.ecourts.gov.in/hcservices/ 13. Per contra, the counsel for the second respondent had submited that the labour court has come to the conclusion based upon the materials available on record both oral and documentary. Therefore, such finding of the labour Court cannot be interfered with under Article 226 of the constitution of India, being a finding arrived on facts. The learned counsel further submit that the findings of the enquiry officer is not correct, since, the labour court found that no reasonable man in the circumstances of this case would have accepted such findings. 14. The learned counsel submits that even though other independent witnesses were available they have not been examined as against M.W.1 to M.W.3. According to the counsel, there is no explanation as to why no action was taken against the same complaint made by M.W.1 and also no explanation as to why M.W.2 has not given any complaint earlier. Therefore, the learned counsel would submit under those circumstances, this Court cannot interfere with the award of the Labour Court. 15. I have considered the submissions made the learned counsel for the petitioner, as well as that of the second respondent in the presence case on hand. The second respondent has been reinstated even before the filing of the writ petition on 23.01.2002. It is also not in dispute that after the reinstatement the second respondent has voluntarily resigned from the petitioner and the resignation letter of the second respondent dated 1.12.2006 was also accepted by the petitioner on 02.12.2006. In pursuant of the said order all the attended benefits have been given to the second respondent. 16.Therefore, the only question to consider is as to whether the second respondent is entitled to get the backwages are not Three witnesses have been examined in order to substantiate the alleged occurrence committed by the second respondent on 21.10.1994. As observed by the labour court M.W.1 and M.W.2 are the persons against whom statement were said to have been made through the posters by the second respondent. There are also earlier complaint made against the second respondent for which no action has been taken by the petitioner. However, the second witness has not made any complaint against the past occurrence. 17. It is also not in dispute that there were other witnesses who have seen the occurrence and who also said to have seen the posters. Therefore, there is no explanation given by the petitioner for not examining the other witnesses. In so far as M.W.3 is concerned he is the security guard incharge. He is also said to have given the complaint to the management through the security officer. The security officer Mr.Mariappan, has not been examined and show cause notice has been issued on 21.10.94 itself. That is the reason, why the labour court has found that the non examination of the security https://hcservices.ecourts.gov.in/hcservices/ officer through whom the complaint was given is fatal to the case of the petitioner. Admittedly, the second witness gave the complaint on the next day. There is also no explanation as to why the third witness has not stopped are prevented the second respondent from indulging in the alleged act. Further, the labour court found that the officers have not been examined about the damages caused by the affixing of the poster. The labour court also found that M.W.1 has not seen the contents of the wall paper. 18. The labour court has given findings based upon the material available and found that the reasoning of the enquiry officer as accepted by the petitioner are not proper and infact such a findings of the labour court cannot be said to be against the provisions contained under section 11A of the Industrial Disputes Act. 19. No doubt the labour court has not held that the findings of the enquiry officer is not based upon no evidence and perverse but the labour court has found that the findings are such that no reasonable man in the circumstances of the case would have given such a finding. Therefore, this court is of the opinion that the said findings given by the labour court on appreciation of the material available on record both oral and documentary evidence cannot be interfered by this court under Article 226 of the Constitution of India. 20. In so far as the issue the learned counsel for the petitioner relied upon a decision reported in 2006 AIR Supreme Court 2730. Divisional Controller, N.E.K.R.T.C. v. H. Amaresh. This court is of the opinion that the said judgment is not applicable to the facts of the present case. It has been held that once a domestic Tribunal based on evidence comes to a particular conclusion normally it is not open to the Tribunal and Courts to substitute their subjective opinion in place of the one arrived at by the domestic Tribunal. Therefore, it may not be said that in a case where the first respondent finds that the finding of the enquiry is not just and proper the same cannot be set aside. 21. Similarly in the judgment reported 2007 (3) LLN page 128. The Hon'ble Supreme Court was pleased observation is as follows:- " 29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on "no evidence" or is perverse, or is such that no reasonable man in the circumstances of the https://hcservices.ecourts.gov.in/hcservices/ case would have reached such finding. In the present case, four charges had been levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it. 30. In our opinion, therefore, the High court was not right in exercising power of judicial review under Arts. 226/227 of the Constitution and virtually substituting its own judgment for the judgment of the management and /or of the Labour Court. To us, the learned counsel for the appellant-bank is also right in submitting that apart from charges 1 and 2, charges 3 and 4 were "extremely serious" in nature and could not have been underestimated or underrated by the High Court." 22. The said judgment would show that in a case where the findings of the enquiry officer is such that no reasonable man in the circumstances of the case would have rejected the said findings then the said findings are liable to be setaside. What the first respondent has done in the present case is that the findings of the enquiry officer are wrong and in support of the same the first respondent has given his reasoning from the same, it cannot be considered that the first respondent has given his findings which are subjective in nature. 23. In so far as contention of the learned counsel for the petitioner regarding the back wages are concerned, this Court is of opinion the said contention merits consideration since it is not in dispute that the petitioner company is a sick company and no counter has been filed disputing the said contention made in the affidavit filed in support of the petition. 24. In fact, it has been subsequently stated by the petitioner that for the past 10 years, the petitioner company is in poor financial position. It has been further stated that as on the date of the filing of the affidavit which is on 18.12.01 the petitioner company has incurred a loss of Rs.45 crores. The petitioner was declared as a sick company under the Sick Industrial Companies Act 1985 and that is the reason for the second respondent to take back and reinstated the second respondent in service in order to avoid the payment of the amount under section 17 b of the Industries Dispute Act. https://hcservices.ecourts.gov.in/hcservices/ 25. In support of the contentions the learned relied upon the judgment rendered by the Apex Court reported (2009) 5 Supreme Court Cases 705. The Hon'ble court Supreme Court such judgment has observed as follows: " 14. In P.G.I of Medical Education and Research V. Raj Kmar – 2(2001) 2 SCC 54 : 2001 SCC (L&S) 365 this court has held that: (SCC p. 58, para 12) "12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety." 15. The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a menner which cannot but be judicious in nature. There exists an obligation on the part of the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable. 16. In Hindustan Motors Ltd. V. Tapan Kumar Bhattacharya – (2002) 6 SCC41 : 2002 SCC (L & S) 818 this court has stated that Section 11-A as amended in 1971, is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty- bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent. The Court then held that: (SCC p.41b-c) " Industrial Tribunal and Division Bench of High Court erred in proceeding on the assumption that quashment of dismissal order should be followed by reinstatement with full back wages as a matter of course." "16 . . . . . On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement".(SCC p.45 para 6) 17. In U.P. State Brassware Corpn. Ltd. V. Uday Narain Pandey – (2006) I SCC 479 : 2006 SCC (L &S)250 it is observed that: (SCC p.492, para 42) "42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose https://hcservices.ecourts.gov.in/hcservices/ much of their significance." 18. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed loittle or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situated which prevailed many years ago, namely, when the workman was retrenched. 19. In Haryana Urban Development Authority v. Om Pal – (2007) 5 SCC 742 : (2007) 2 SCC (L&S)255 it is stated that: (SCC p.745, para 7) "7. . . . . . it is now also well settled that despite a wide discretionary power conferred upon the Industrial Courts unde Section 11-A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any." 20. In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. (Western India Match Co. Ltd., V. Industrial Tribunal) – (1978) I SCC 154 : 1978 SCC (L&S) 31: 1978 Lab IC 179. 21. In Hindustan Tin Works (P) Ltd. V. Employees – (1979) 2 SCC 80 : 1979 SCC (L&S) 53 this court has held that: (SCC p.85, para 9) "9 . . . . . The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid." It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law. 22. In Surendra Kumar Verma v. Central Govt. Industrial Tribunal – cum – Labour Court – (1980) 4 SCC 443 : 1981 SCC (L&S)16 this court has observed that: (SCC p.447, para 6) "6. . . . . Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and https://hcservices.ecourts.gov.in/hcservices/ so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court mauy mould the relief . . . ."17 23. In allahabad Jal Sansthan v. Daya Shankar Rai – (2005) 5 SCC 124 : 2005 SCC (L&S)631 this court has observed : (SCC p.128, para 6) "6. A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and /or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration." 24. In Madurantakam Coop. Sugar Mills Ltd. V. S. Viswanathan – (2005) 3 SCC 193 : 2005 SCC (L&S) 372 the quantum of back wages was confined to 50%, stating : (SCC p.198, para 19) "19. . . . It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages." 25. In the instant case, the notice had been issued limiting the question to the payment of 50% of the total back wages. This does not mean that the respondent is not entitled to further relief. The point that his services were terminated in the year 1985 and since then the case is pending for the last two decades in different courts also has no relevance, since he had approached the court within a reasonable time. It is not his fault that the case is still pending before the court. These grounds could not https://hcservices.ecourts.gov.in/hcservices/ be held against him for denying