IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.03.2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.A.No.2863 of 2001 and W.A.M.P.No.21301 of 2001 MAK India Pvt. Ltd., rep. by its Managing Director, Coimbatore-641 062. ..Appellant/Petitioner vs. 1.A.Palaniswamy 2.A.Shanmugam 3.M.Thangaraj 4.The Presiding Officer, Labour Court, Coimbatore. ..Respondents/Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order in W.P.No.6556 of 1990 dated 23.09.1998. W.P.No.6556 of 1990: Petition filed under Article 226 of the Constitution of India, to call for the records on the file of the fourth respondent relating to the impugned common award of the fourth respondent made in I.D.No.233/85, 234/85 and 235/85 dated 25.09.1989 and quash the same in so far as it relates to the findings on the merits of the dispute including reinstatement of respondents 1 and3 with continuity of service with 50% backwages. For Appellant : Mrs. Rita Chandrasekar for M/s.Aiyar & Dolia For Respondents : Mr.G.B.Saravana Bhavan RR1 to 3 J U D G M E N T M.VENUGOPAL,J. The Appellant/Petitioner has filed this writ appeal as against the order of the learned single Judge dated 23.09.1998 in W.P.No.6556 of 1990 in modifying the Award dated 25.09.1989 passed by the Labour https://hcservices.ecourts.gov.in/hcservices/ Court in I.D.Nos.233, 234 and 235 of 1985 by directing the Appellant/Petitioner to reinstate the respondents 1 to 3/claimants in their respective posts forthwith with continuity of service and payment of backwages from August 1991 onwards. 2. The learned single judge while passing orders in W.P.No.6556 of 1990 dated 23.09.1998 has among other things observed that 'the enquiry was held properly and that the respondents 1 to 3/claimants had not challenged the Enquiry Findings and therefore the same was binding on them but the Labour Court came to the conclusion that the punishment imposed was disproportionate to the proved charges and therefore had not interfered with the findings of the Labour Court but modified the Award of the Labour Court by denying the backwages of the respondents 1 to 3 for a period of seven years from August 1984 to July 1991 and further directed the Appellant/Petitioner to reinstate them in their respective posts with continuity of service and payment of backwages from August 1991. 3. The Labour Court while passing the common Award in I.D.Nos.233 to 235 of 1985 filed by the respondents/claimants on 25.09.1989 held that 'the Domestic Enquiry conducted against the respondents 1 to 3/claimants were properly conducted but took the view that the punishment of dismissal from service imposed by the Appellant/Petitioner in respect of the respondents 1 to 3/claimants was on the higher side and accordingly set aside the same and directed their reinstatement with continuity of service with 50% of backwages.' 4. The learned counsel for the Appellant/Management submits that the order of the learned single Judge passed in the writ petition in directing the reinstatement of the respondents 1 to 3/claimants in their respective posts forthwith with continuity of service and payment of backwages from August 1991 onwards is contrary to law, weight of evidence and probability of the case and also the learned single Judge has not appreciated the fact that the Labour Court has committed an error in directing the reinstatement of the respondents 1 to 3/claimants with continuity of service and 50% of backwages. 5. Expatiating her submissions, the learned counsel for the Appellant/Management contends that the learned single Judge after coming to the conclusion that the enquiry proceedings were fair and proper ought not to have interfered with the punishment imposed by the Appellant/Management and in any event, for the proved misconduct, the punishment of dismissal from service awarded by the Appellant/Management to the respondents 1 to 3/claimants could not be said to be a disproportionate one and therefore prays for allowing the writ appeal in furtherance of substantial cause of justice. 6. To lend support to the contention that for the proved misconduct in respect of the respondents 1 to 3/claimants either the https://hcservices.ecourts.gov.in/hcservices/ Labour Court or this Court cannot substitute the penalty of dismissal imposed by the Appellant/Management (Employer), the learned counsel for the Appellant/Petitioner cites the decision of the Hon'ble Supreme Court JANATHA BAZAR (SOUTH KANARA CENTRAL COOPERATIVE WHOLESALE STORES LTD.) AND OTHERS V. SECRETARY, SAHAKARI NOUKARARA SANGHA AND OTHERS, (2000) 7 SUPREME COURT CASES 517, at page 518 wherein it is held that 'In case of proved misappropriation there is no question of considering past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases.' 7. As far as the present case is concerned, the respondents 1 to 3/claimants were found to be the front runners in organizing the strike. As against the respondents 1 to 3/claimants, the allegation of the Appellant/Management was that they destroyed the loom prepared by a Workman Rayappan. Though it was denied by the said Rayappan, the Appellant/Management issued a show cause notice to the respondents 1 to 3/claimants and also conducted a Departmental Enquiry in which the respondents 1 to 3/claimants took part. The Labour Court on appreciation of oral and documentary evidence came to the right conclusion that the respondents 1 to 3/claimants were the front runners in organizing the strike, etc., and held that the Domestic Enquiry was conducted properly but it took the view that the punishment of dismissal from service awarded to the respondents 1 to 3/claimants by the Appellant/Management was an excessive one and accordingly, set aside the same and instead ordered reinstatement of the respondents 1 to 3/claimants in service in their respective posts with continuity of service and payment of 50% backwages. 8. The learned single Judge in the writ petition opined that this Court cannot interfere with the findings of the Labour Court as it was not an Appellate Authority under Article 226 of the Constitution of India but modified the Award passed by the Labour Court in respect of backwages portion alone and denied backwages to the respondents 1 to 3/claimants from August 1984 to July 1991 (for seven years) and ordered reinstatement of respondents 1 to 3/claimants in their respective posts with continuity of service and payment of backwages for the period from 1991. 9. Generally speaking, the Labour Court/Industrial Dispute/a Court of Law is not supposed to substitute the penalty imposed by the Employer/Management to the delinquent/worker. It is true that an Employer exercises his discretion in awarding penalty for the proved misconduct in a Domestic Enquiry by it. 10. It cannot be gain said that if the punishment imposed by the Employer in respect of a workman/claimant shocks the conscience of Court or if the same is disproportionate to the offence/act committed by an employee, then this Court can interfere in regard to the said https://hcservices.ecourts.gov.in/hcservices/ punishment when it suffers from irrationality, illegality and if it is an excessive one. 11. We deem it apt to point out that if the punishment awarded to an employee is disproportionate or on the higher side, then certainly it will infringe upon the Article 14 of the Constitution of India. Suffice it for us to point out that the punishment awarded must be a reasonable and fair one and if the punishment is excessive, then it will certainly suffer the vice of arbitrariness. Awarding a just punishment in proportionate to the act/offence committed explains the finesse of the person concerned, since it reflects the reasonableness. 12. We are of the considered view that as the High Court is not an Appellate Authority under Article 226 of the Constitution of India and the learned single Judge was right in not interfering with the findings of the Labour Court but exercised his judicial discretion in judicial review by denying the backwages for a period of seven years from August 1984 to July 1991 and further directed reinstatement of the respondents 1 to 3/claimants in their respective posts with continuity of service and payment of backwages from August 1991, thereby modifying the Award passed by the Labour Court. 13. Coming to the aspect of the present case, the learned counsel for the Appellant/Management informs this Court that the Appellant/Management is not functioning and as a matter of fact, the respondents 1 to 3/claimants had settled their accounts after the dismissal order dated 14.08.1984, issued to them. 14. The respondents have filed counter affidavit stating that they have approached the Management and they were denied employment. According to the Management, the accounts were settled and hence there was no question of employment. 15. It cannot be forgotten that the date of dismissal of the respondents 1 to 3/claimants dates back to 14.08.1984, 14.06.1984 and 14.09.1984 respectively and nearly 15 years have gone by. In the affidavit filed by respondents 1 to 3, there are no averments that the respondents 1 to 3 were not gainfully employed elsewhere. Therefore taking note of the development that the Appellant/Management is not functioning (as informed by the learned counsel for the appellant), such orders of reinstatement of the respondents 1 to 3/claimants in their respective posts with continuity of service and payment of backwages from 1991 as ordered by the learned single Judge passed in the writ petition in W.P.No.6556 of 1990 dated 23.09.1998 will not serve the desired purpose to the respondents/claimants and in order to do equitable justice and to promote the substantial cause of justice, we are inclined to interfere with the said order of the learned single judge and instead we direct the Appellant/Management to pay a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.50,000/- (Rupees fifty thousand only) each to the respondents/claimants in full quit as compensation within a period of eight weeks from the date of receipt of a copy of this order and accordingly, dispose of the writ appeal in the above terms without costs. The connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri To The Presiding Officer, Labour Court, Coimbatore. + 1 c.c. to Mr. G.B. Saravana Bhavan, Advocate. S.R.No.19523. + 1 c.c. to M/s. Aiyar & Dolia, Advocates. S.R.No.19013. W.A.No.2863 OF 2001 GS (CO) GSK 06.04.2010. https://hcservices.ecourts.gov.in/hcservices/