IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.03.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.20187 of 2000 The Management of Rallis India Limited, Fine Chemicals Division, Sandynalla Udhagamandalam ... Petitioner Vs 1.The Presiding Officer, Labour Court, Coimbatore. 2.Leon Lenard ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records of the first respondent in I.D.No.221/98 and quash its award dated 28.08.2000. For Petitioner : Mr.V.Karthik for M/s.T.S.Gopalan & Co., For Respondents : Mr.Srinath Sridevan for R2 O R D E R Heard both sides. 2. The petitioner is the Management. They have come forward with this writ petition, challenging the Award passed by the first respondent - Labour Court, Coimbatore in I.D.No.221 of 1998 dated 28.08.2000. By the impugned Award, the Labour Court directed reinstatement of the second respondent/Workman with service continuity and 50% of the backwages. 3. The writ petition was admitted on 30.11.2000. Pending the writ petition, this Court granted an order of interim stay on condition that the petitioner deposits the entire backwages to the credit of I.D.No.221 of 1998. Subsequently, the interim stay was made absolute on 31.12.2002. https://hcservices.ecourts.gov.in/hcservices/ 4. On an application taken out by the Workman, this Court directed the last drawn wages viz.,Rs.4,752.71 to be paid to him from July 1997. Thereafter, in the vacate stay application filed by the workman, this Court directed that the amount deposited in the Labour Court to be invested in a nationalized bank for a period of three years at the first instance and the Workman was permitted to withdraw quarterly interest. It is admitted by the both sides that the interim order had been complied with. 5. Mr.V.Karthik appearing for M/s.T.S.Gopalan and Co., learned counsel for the Management submitted that the second respondent- Workman was employed as a Driver in the Petitioner's Factory. On 25.01.1997, he was deputed to pick up one K.Ramachandran, General Secretary of the Union from Naduvattam in Nilgiris District. He was accompanied by one Rajagopal, the Security Guard. On its return, he had met with an accident. A criminal case was registered against the second respondent for rash and negligent driving. In the criminal case in STR No.554 of 1997 before the Judicial Magistrate at Udhagamandalam, the second respondent pleaded guilty on 28.01.1997 and he was convicted and fined Rs.250/- under Section 279 I.P.C. and Rs.200/- under Section 337 I.P.C. The petitioner paid the total fine of Rs.450/-. 6. Subsequently, the petitioner Management came to know that the second respondent was involved in an accident in which he had also paid fine in the criminal case. In that case he falsely gave his father's name as Masilamani and such action was done to mislead the Management. The fact of the accident and the subsequent payment of fine was not brought to the notice of the Management. When the Management came to know about the same, a charge memo was given to the Workman. An Enquiry Officer was appointed to conduct the enquiry. During the enquiry, the second respondent admitted about his being convicted by the Criminal Court for rash and negligent driving. But with reference to charge Nos.1,2 and 4 as per Ex.A5, he pleaded not guilty. The Management examined the witnesses in the enquiry. The Enquiry Officer came to the conclusion that since the petitioner had voluntarily admitted the charges in respect of charge No.3 as per Ex.A5 dated 06.02.1997, the charges were proved. In essence, the Enquiry officer based upon his findings on the voluntarily admission as well as the fine paid before the Criminal Court. On the basis of this finding, the second respondent was dismissed from service by an order dated 04.07.1997. 7. Thereafter, the Workman raised a dispute before the Deputy Commissioner of Labour, Coimbatore. Since no conciliation was possible, a failure report was given to him. On the strength of the failure report, he filed a claim statement before the Labour Court on 26.06.1998. The Labour Court took up the dispute on file as I.D.No.221 of 1998 and issued notice to the petitioner- Management. The Management filed a counter statement dated Nil (September https://hcservices.ecourts.gov.in/hcservices/ 1998). In the counter statement, apart from justifying the dismissal, in paragraph 17, it was stated that they had lost confidence on the Workman. Therefore, he should not be reinstated in service. The second respondent filed a rejoinder. 8. Before the Labour Court on the side of the second respondent, 14 documents were filed and marked as Exs.W1 to W14. On the side of the Management, 31 documents were filed and marked as Exs.M1 to M31. 9. The Labour Court held that there was no infirmity in the enquiry. On the basis of the admission of the Workman, the charges were proved against him. But with reference to the grant of relief, the Labour Court held that the punishment of dismissal was disproportionate to the charges levelled against him. The workman had been working from 03.09.1980 and only on two occasions in the year 1982, he was warned for rash driving. During the course of 17 years of service, there was no complaint that he met with any accident. There was also no other charges. It was also found by Ex.W1 dated 30.11.1988 that the Workman was promoted as 'B' Grade driver and by Ex.W2 dated 21.04.1994, he was promoted as 'A' Grade Driver. If the conduct of the second respondent was not satisfactory during his service, he would not have got two promotions. Therefore, the Labour Court held that the circumstances pleaded by the Management were not applicable and that the Workman is entitled for re-instatement with continuity of service but only with 50% of the backwages. 10. The learned counsel for the petitioner- Management submitted that the Award of the Labour Court was erroneous. Having found the workman guilty and accepting the domestic enquiry conducted by the Management, it was not open to the Labour Court to exercise power under Section 11-A of the Industrial Disputes Act,1947 in this fashion. It was also submitted that once a person had committed such a misconduct of suppression of information about his conviction to the Management, naturally the employer would refuse to engage the Workman as they had lost confidence on him. 11. With reference to the first contention regarding the power of the Labour Court under Section 11-A of the I.D.Act to interfere with the penalty, it must be noted that in this case, there was no independent examination of any witness regarding the negligent driving of the Workman. On the contrary, the workman attempted to gave an explanation that there was mist in the air when he was driving the lorry and hence, the accident had taken place. In any event, the entire exercise of subsequent conduct of domestic enquriy was to prove that by his rash driving he caused loss to the employer. It transpires that the Enquiry Officer came to the conclusion only on the basis of the Workman pleading guilty before the Criminal Court and paid the fine. https://hcservices.ecourts.gov.in/hcservices/ 12. When an employer removes the worker solely based upon a conviction, even this Court under Article 226 of the Constitution can go into the proportionality of the punishment. The Supreme Court in Union of India v. Parma Nanda reported in (1989) 2 SCC 177 has held that High Court or a Tribunal can interfere with the proportionality of punishment since in such circumstances the workmen would not have been heard on the quantum of penalty before his dismissal. 13. In paragraphs 26, 29 and 30 of the said judgment, it was observed as follows: "26. So much is, we think, established law on the scope of jurisdiction and the amplitude of powers of the Tribunal. However, of late we have been receiving a large number of appeals from the orders of Tribunals — Central and States — complaining about the interference with the penalty awarded in the disciplinary proceedings. The Tribunals seems to take it within their discretion to interfere with the penalty on the ground that it is not commensurate with the delinquency of the official. The law already declared by this Court, which we reiterate, makes it clear that the Tribunals have no such discretion or power. 29. We may however, carve out one exception to this proposition. There may be cases where the penalty is imposed under clause (a) of the second proviso to Article 311(2) of the Constitution. Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under clause (a). This power has been conceded to the court in Union of India v. Tulsiram Patel where Madon, J., observed: (SCC pp. 501-02, para 127) “[W]here a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be.... The disciplinary https://hcservices.ecourts.gov.in/hcservices/ authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the government servant concerned. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in. appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court’s power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.” 30. The last contention that the respondent falls into the category of a workman and the Tribunal could exercise the powers of an industrial court for giving appropriate relief is unavailable in this case, since the respondent had made his choice of forum and was even otherwise dealt with under the Government Servants (Conduct) Rules which are undisputedly applicable to him." 14. In the present case, the Labour Court has been specifically empowered under Section 11-A of the I.D.Act to go into the question of penalty and decide the proportionality of the https://hcservices.ecourts.gov.in/hcservices/ punishment. The Labour Court having applied the correct parameter had decided to exercise its discretion to order re-instatement. But however considering the facts and circumstances, it had denied 50% of the backwages to the Workman. 15. In so far as the second contention that the Management had lost confidence in the Workman, it must be stated that the Labour Court relied upon Exs.W1 and W2 which are two promotion orders given to the workman during his tenure of service. Therefore, the contention of the Management that they had lost confidence on the Workman cannot be accepted. 16. The Supreme Court in L. Michael v. Johnson Pumps Ltd. reported in (1975) 1 SCC 574 has held that during the tenure, if the workman was given promotion, it is too late for the Management to contend that they have lost confidence in such workman. In paragraph 22, the Supreme Court had observed as follows: "22. Before we conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. If the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially. In the instant case this has not been done. There is only the ipse dixit of the employer that he was suspecting since 1968 that the appellant was divulging secrets relating to his business. The employer has not disclosed the grounds on which this suspicion arose in 1968. Further, after 1968, the appellant was given two extra increments, in addition to his normal increments, as stated already, in appreciation of his hard work. This circumstance completely demolishes even the whimsical and tenuous stand taken by the employer. It was manifest therefore that the impugned action was not bona fide." Therefore, this Court is not inclined to consider the submission made by the learned counsel for the Management. https://hcservices.ecourts.gov.in/hcservices/ 17. In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. In view of the dismissal of the writ petition, it is open to the second respondent to withdraw the amounts lying in the deposit with the Labour Court in I.D.No.221 of 1998 together with interest, if any accrued thereunder. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar Svki To The Presiding Officer, Labour Court, Coimbatore. 1 cc To M/s.T.S.Gopalan & Co., Advocate, SR.15830. W.P.No.20187 of 2000 MS(CO) RVL 18.03.2010 https://hcservices.ecourts.gov.in/hcservices/