IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.03.2009 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.15768 of 1996 Sivagiri Primary Agricultural Co-operative bank (AA502), Sivagiri, Periyar District, rep. by its Secretary, K.Thirugnanasambandam ... Petitioner vs. 1. K.Murugesan, Pallathur Veedu, Nedenchelian Street, Sivagiri 638 109. 2. The Presiding Officer, Labour Court, Salem. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, to quash the proceedings of the second respondent, dated 22.04.1996 and made in I.D.NO.458 of 1991, after calling for the records and perusing the same. For Petitioner : Mr.Kandavadivel Doraisami For 1st Respondent : Mr.M.Ramamurthi for Mr.K.V.Shanmuganathan O R D E R The dismissal of a Peon from the first respondent bank following a domestic enquiry was challenged before the Labour Court. Upon adjudicating the dispute, the Labour Court ordered reinstatement. Aggrieved by the same, the Management bank has filed the present Writ petition. 2. Facts leading to the Writ Petition are as follows: The first respondent absented himself from the Office from 07.11.1990 to 17.11.1990 without submitting any leave letter. Therefore, the management issued a show cause notice, dated 20.11.1990, directing him to explain as to why he should not be suspended for the said misconduct. It is the case of the management that an evasive reply, dated 22.11.1990 was given, stating that he had taken leave as per the rules. Once again on 09.04.1991, without permission from the management, he went to Erode during working hours. While he was asked to go for collection, he refused to do so. Above all, on 10.04.1991, when one of the Directors, Thiru.N.Ragunathan, came to the Bank and enquired with the first respondent, whether the President was available, the employee in a careless and atrocious manner, told the Director that he can go and see the President in the Bazaar, where he usually loiters. Thereupon, the said Director requested the employee to give the by-cycle of the Bank to go and see the President. In the midst of several other persons, the first respondent abused the Director in a filthy language and refused to give the by-cycle. On the complaint of the said Director, action was taken against the respondent. 3. The petitioner-Bank has further submitted that on an earlier occasion, the respondent-employee, without any justification, falsely represented to the Secretary of the Bank that the Secretary is directed to appear before the Deputy Registrar, Erode. When the Secretary appeared before the Deputy Registrar, Erode, with all records believing the words of the first respondent, to his surprise, he was informed by the Deputy Registrar that no such direction was given. Therefore, for the above acts of misconduct, the management gave a memo, dated 16.11.1991, directing him to submit his explanation for the charges. The employee submitted his explanation, dated 19.04.1991, denying the alleged misconduct and further stated that the Director himself came in a drunken mood and asked for the cycle and the respondent told him to take the cycle, after informing the Secretary and at that time, the Director had used abusive language. 4. The petitioner has further submitted that not satisfied with the explanation, the management decided to suspend the first respondent-employee, pending enquiry. The respondent was asked to appear before the committee, consisting of three members to give explanation to the charges. During the enquiry, the Director, Mr.Ragunathan has clearly deposed that he was insulted and abused by the first respondent on 10.04.1991 and that the allegation that he was drunk, was defamatory. The charges were proved through examination of the witnesses, viz., Thiru.Jothirammu and Thiru.Marudhachalam respectively. 5. It is the further case of the petitioner that the employee had admitted his guilt in writing. The enquiry committee found all the charges as proved. On the basis of the report, by a communication, dated 27.05.1991, the first respondent was asked to give his explanation, as to why he should not be dismissed from service. In response, the first respondent submitted his further explanation, stating that he is an uneducated person and that the domestic enquiry was not conducted properly. He further requested the management to reconsider the provisional conclusion of the management to dismiss him from service. Ultimately, the first respondent was dismissed from service on 13.06.1991. Aggrieved by the same, the first respondent raised an Industrial Dispute in I.D.No.458 of 1992. Though a detailed counter affidavit was filed on behalf of the management and evidence was let in to prove the charges, the Labour Court on an erroneous appreciation of law and facts, passed an order, dated 22.04.1996, directing re-instatement of the first respondent with 50% backwages. Aggrieved by the same, the management has preferred the present Writ Petition. 6. While admitting the present Writ Petition, this Court, by order dated 04.11.1996, has granted an order of stay of reinstatement. 7. In the application filed to vacate the say, the first respondent-employee has contended that he became sick and therefore, took 13 days Medical Leave in the month of November' 1990 in the following spells: (1) 3 days from 01.11.1990 to 03.11.1990 (2) 10 days from 07.11.1990 to 17.11.1990 For the above said period, he sent Leave Letters along with Medical Certificates by registered post to the management and after the expiry of the leave period, he joined duty. But the management with an oblique motive, issued a charge memo, alleging that he had remained absent unauthorisedly for 13 days, even without applying for leave. The first respondent has further submitted that on the basis of the complaint given by one of the Directors of the respondent-bank, the management issued another charge memo, for which, a detailed explanation was also given. 8. It is the grievance of the first respondent that the Enquiry Committee constituted to enquire into the veracity of the charges, did not even consider his request to have a co-worker to assist him in the domestic enquiry. Though the first respondent submitted a detailed explanation to the findings, without even adverting to the same, he was dismissed from service with effect from 13.06.1991. As the Conciliation efforts failed, he preferred an Industrial Dispute before the Labour Court. It is the contention of the first respondent before the Labour Court that the Management failed to prove the charges relating to the absence, dereliction of duty, disobeyance. Analysing the oral and documentary evidence, the Labour Court has recorded a specific finding in respect of each of the charges, holding that the first respondent is not guilty. The first respondent has further submitted that the Labour Court, has discharged his duty, enjoined upon it, under Section 11-A of the Industrial Disputes Act, 1947 and the said finding does not suffer from any perversity and therefore, there is no need to interfere with the findings of the Labour Court and the consequential order of reinstatement. With the above contentions, the first respondent has prayed for dismissal of the Writ Petition. 9. Assailing the award of the Labour Court, Mr.Kandavadivel Doraisami, learned counsel for the petitioner Bank submitted that the charge of absenteeism without leave letter, has been admitted by the first respondent and therefore, the Tribunal has erred in reversing the findings recorded in the domestic enquiry. In respect of abusing the Director with unparlimentary words, two independent witnesses examined on behalf of the management have categorically deposed about the conduct of the first respondent and therefore, the finding of the Labour Court to the contrary, is perverse. He further submitted that the finding of the Labour Court that since the Management Witness No.1, Mr.Ranganathan, did not specifically mention the words used by the first respondent-employee, while abusing him and therefore, the charge cannot be proved, amounts to re-appreciation of the entire evidence let in before the Sub Committee, which is not permissible in law. 10. Referring to the admission made by the first respondent-employee on 18.05.1991 to the Committee as unequivocal, learned counsel for the petitioner submitted that when all the charges were admitted, there is no need to examine the Secretary of the Bank before the labour Court to support the order of dismissal and in particular to the charges relating to absence, disobeying the orders of the Secretary, when the respondent was asked to go for collection of dues and leaving the Office, without prior permission. 11. Learned counsel for the petitioner further submitted that having examined the oral and documentary evidence let in before the Sub Committee, the labour Court has failed to appreciate the same in proper perspective and when some evidence has been let in to prove the charges, the Labour Court erred in totally ignoring the same. For the above said reasons, he prayed that the award of the Labour Court be set aside. 12. Per contra, Mr.M.Ramamurthi, learned counsel for the first respondent-employee submitted that in respect of Charge Nos.1, 2, 3 and 5, the Secretary of the bank was not examined before the domestic enquiry as well as in the Labour Court and therefore, the findings recorded by the Sub Committee is without any evidence. He further submitted that it is rudimentary that the management has to prove all the charges and in the absence of any unequivocal admission on the part of the first respondent-employee, no finding of guilt can be arrived at. According to him, only in respect of fourth charge, oral evidence was let in before the Labour Court. Even the words alleged to have been used by the respondent-employee have not been mentioned in the complaint nor deposed before the Labour Court by the management. 13. Taking this Court through the oral testimony of MW.1, i.e., Thiru.Ranganathan, one of the Directors, alleged to have been abused, learned counsel for the respondent-employee submitted that the witness himself had deposed that he had not given any report immediately to the Secretary in writing. He also brought to the notice of this Court that the decision to take punitive action against the respondent-employee, was pre-determined and the same was reflected in the domestic enquiry, when the President of the bank himself has stated that the management would take appropriate action against the employee for not utilising the opportunity to seek apology. According to the learned counsel for the first respondent-employee, when the management failed to sustain the order of dismissal before the Labour Court, there is no need to interfere with the well considered and reasoned order of the labour Court, directing reinstatement of the employee with 50% of backwages. Hence, he prayed for dismissal of the Writ Petition. 14. Heard the learned counsel for the parties and perused the materials available on record. 15. Pleadings disclose that five charges were framed against the first respondent on 16.04.1991, under Ex.R3, which are as follows: (i) That on 09.04.1991, without any authority or permission of the Secretary of the Bank, he had left for Erode, after making entry in the camp register. (ii) Though he was asked by the Secretary to the go for collection of dues from the Customers, he had refused to do so and ignored the directions of the Superior Officer and acted against the interest of the Bank. (iii) Without discharging the dues and permission from the Secretary, he had gone to the Office of the other union and thus, gives hindrance to the bank. (iv) When one of the Directors, Thiru.Renganathan, came to the Office of the bank, without giving due respect to him, he has sitting and when the same was enquired, he had abused him with an unparlimentary words, thus, he had acted indisciplined manner. (v) On 09.04.1991, when he was given a false opinion to the Secretary of the Bank that he was directed to appear before the Deputy Registrar at Erode, the Secretary appeared before the Deputy Registrar at Erode, he was informed that there was no such instructions and therefore, he had furnished a false information to the Secretary of the bank. 16. Before the Labour Court, though two management witnesses were examined to prove Charges, the Secretary of the petitioner-bank has not been examined to prove Charges 1, 2, 3 and 5, which relate to failure on the part of the first respondent-employee, in not properly discharging his duties and acting contrary to the directions of the Secretary of the bank. The 4th charge relate to giving false information to the Secretary of the bank to appear before the Deputy Registrar at Erode. The Labour Court has given an opportunity to the management to adduce evidence on merits and justify the order of dismissal. Therefore, it is their bounden duty to prove the charges with sufficient materials on record. It is well known that the scope of interference of the High Court with the findings recorded by the Labour Court is very limited. But the powers of the High Court are not fettered to examine whether the order suffers from any jurisdictional error or breach of natural justice or vitiated by manifest error in the finding, i.e., perversity. In the absence of examining the Secretary of the bank, to prove Charge Nos.1, 2, 3 and 5, the findings of the Labour Court, holding that the above said charges are not proved by the management witnesses, cannot be said to be perverse. As rightly contended by the learned counsel for the first respondent-employee, the Labour Court has properly appreciated the evidence and this Court does not find any ground to interfere with the same. 17. The only question to be considered by this Court is whether the management has proved Charge No.4, which relates to showing disrespect and abusing one of the Directors with unparliamentary words. Though the two management witnesses have deposed that unparliamentary words were used by the first respondent-employee in the complaint, dated 10.04.1999, Ex.M1, submitted to the President of the Bank, on perusal of the said complaint, the Labour Court has categorically found that there was no reference to the exact words used by the respondent-employee, stated to be unparliamentary. Upon analysising the evidence of MW.1, the Labour Court has also observed that the said witness has not mentioned the specific words used in the alleged incident that took place on 10.04.1991 and even MW.2 has also not supported the specific charge. From the perusal of the award, it is evident that, all that is stated before the Labour Court was that the first respondent- employee had shown disrespect, when the MW.1, one of the Directors asked for the whereabouts of the President of the Bank. There is no concrete evidence to prove that the first respondent-employee had used unparliamentary words and abused the Director. 18. As rightly contended by the learned counsel for first respondent-employee, perusal of the materials on record reveals that the the first respondent-employee was compelled to seek apology and therefore, there is an element of bias in the action taken against him. Extract of statement of the President to that effect in the award would support the view of this Court. It is well settled that judicial review is restricted only to the process of decision making and that, the decision arrived at, cannot be reversed, unless it is shown to be perverse. In the absence of proof of usage of unparliamentary words, the Labour Court has come to a proper conclusion that the fourth charge levelled against the first respondent-employee as not proved. 19. Even assuming without admitting that the first respondent has uttered unparliamentary words, whether such conduct, warrants extreme penalty of dismissal from service. It is worthwhile to extract some decisions, where the Courts have held that extreme penalty of dismissal or removal on the facts of reported cases as unwarranted. 20. In Rama Kant Mishra v. State of U.P., reported in 1982 (2) LLJ 472, an employee of U.P. Electricity Board was found guilty of disorderly behavior or conduct likely to cause breach of service, threatening an employee within the premises and the conduct was alleged to be prejudicial to the good order or discipline. It was alleged that when there was a deduction of wages for the absence from place of work and late attendance, the employee had lost his balance and used threatening language, which is reproduced hereunder: "Are other persons your father. I will make you forget your high handedness either here or somewhere else. An officer of yesterday's making discloses power consciousness." 21. The Supreme Court, while affirming the legal position that the Labour Court has the jurisdiction and power to substitute its measure of punishment in the place of managerial wisdom, once it is satisfied with the order of discharge or dismissal was not justified in the facts and circumstances of the case, held as follows: "6. The punishment must be for misconduct. To some extent misconduct is a civil crime which is visited with civil and pecuniary consequences. In order to avoid the charge of vindictiveness, justice, equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged. In the development of industrial relation norms we have moved far from the days when quantum of punishment was considered a managerial function with the Courts having no power to substitute their own decision in place of that of the management. More often the Courts found that while the misconduct is proved the punishment was disproportionately heavy. As the situation then stood, Courts remained powerless and had to be passive sufferers incapable of curing the injustice. Parliament stepped of curing the injustice. Parliament stepped in and enacted S.11A of the Industrial Disputes Act." 22. Presuming that use of such language as punishable under the relevant standing orders, the Supreme Court, having regard to the length of service of the employee, who was a secretary of the workers union, observed that, "The respondent-management has not shown that there was any blameworthy conduct of the appellant during the period of 14 years' service he rendered prior to the date of misconduct and the misconduct consists of language indiscreet, improper or disclosing a threatening posture. When it is said that the language discloses a threatening posture it is the subjective conclusion of the person who hears the language because voice modulation of each person in the society differs and indiscreet, improper, abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service." 23. In Virudhachalam Co-operative Urban Bank Ltd., etc., v. The Presiding Officer, Labour Court, Cuddalore & another reported in 1994 Writ L.R. 627, His Lorship Justice D.Raju (as he then was), while considering the prayer of the management to quash the order of the Labour Court, which reduced the penalty of dismissal to that of withholding of three increments and denial of backwages in the place of dismissal for the proved misconduct of use of abusive or indecorous language by a worker and after considering the decisions of this Court in Sayed Azam v. State of Madras reported in 1963 (1) LLJ 512 and Rama Kant Mishra v. State of U.P., observed that the gravity of the charge of using indecorous language has to be viewed in the light of the surrounding circumstances also, keeping in view the action of the management which has driven the worker to resort to such method. Though Courts ought not to encourage the use of indecorous language exhibiting thereby indiscipline, yet the indiscreet use of language per se cannot be the basis of an order of dismissal. While coming to the conclusion that the punishment of dismissal was grave and disproportionate to the seriousness of the charges, the Hon'ble Judge affirmed the verdict of the Labour Court in reducing the penalty on the ground of proportionality. 24. In Ram Kishan v. Union of India reported in 1995 (6) SCC 157, the Supreme Court, while dealing with a case of use of abusive language, held that, "when abusive language is used by anybody against the superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language. No strait-jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts." 25. The Division Bench of this Court, while dealing with an order of removal from service for use of intemperate language in the case of Syed Khader Mohiuddin v. The Chairman, Tamil Nadu Public Service Commission reported in 1997 (2) MLJ 272, after considering the decisions cited supra, held that, "Justice, equity and fair play demand that the punishment must always be commensurate with the gravity of the offence charged. This Court, in exercising the power under Art.226 of the Constitution of India, therefore, can examine whether the respondents while imposing the punishment of removal from service have properly approached the matter by exercising or refusing to exercise their power. Before this Court can exercise the discretion, this Court has to be satisfied that the order of removal from service was not justified on the facts and circumstances of the case. Mere use of abusive or indecorous language by a worker per se cannot be basis of an order of removal. Imposing the punishment of removal from service for using in temperate and disrespectful lanuage is too severe in the facts and circumstances of the case on hand and it is disproportionate to the seriousness of the charges held proved against the appellant. Therefore the order of removal from service is liable to be set aside and instead, the appellant shall be entitled to 50% of the backwages only, for the period in question and he has to forego the remaining 50% of the backwages, however, with continuity of service." 26. The contention of the learned counsel for the petitioner that all the charges have been candidly admitted by the first respondent-employee and therefore, the Labour Court had committed an error in reversing the findings recorded in the domestic enquiry is liable to be rejected, for the reason that, if there was an unequivocal admission on the part of the employee, the domestic enquiry would not have been conducted. Therefore, having let in evidence, both oral and documentary to support the order of dismissal, it is not open to the management to contend that there was an admission on the part of the first respondent-employee and that the findings of the Labour Court are perverse. When the Labour Court has given cogent reasons as to how the charges are not established by the management, the Writ Court shall not interfere with the findings, unless there are concrete materials to show that there is a patent illegality or perversity. 27. In view of the above discussion, I do not find that the petitioner-bank has not made out any case for interference with the award of the Labour Court and therefore, the Writ Petition is dismissed. The petitioner is directed to reinstate the first respondent-employee in service and make the payment of wages as S. MANIKUMAR, J. skm ordered, within a period of four weeks from the date of receipt of a copy of this order. No costs. 05.03.2009 skm To The Presiding Officer, Labour Court, Salem. W.P.No.15768 of 1996