IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.02.2011 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.8019 of 2010, M.P.Nos.11 and 12 of 2010 The Management of Sundaram Industries Ltd.Rubber Factory, "Lakshmi Buildings" Theni Road, Kochadai, Madurai – 625 016. ...Petitioner Vs 1.The Industrial Tribunal, High Court Buildings, Chennai 600 108. 2.Sundaram Industries Employees Union, (Regn.No.DRT/B/11/10/88-89) Represented by its General Secretary, S.Pattaraisamy ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records and quash the Award dated 30.1.2010 of the First Respondent Industrial Tribunal, Chennai in I.D.115 of 2000. For Petitioner : Mrs.D.Veda For Respondents : Mr.V.Prakash,SC for Mr.T.Ramkumar for R2 R1 Tribunal O R D E R The petitioner is the Management of M/s.Sundaram Industries Ltd., running its Rubber Factory located at Kochadai, Madurai. They have filed the writ petition, seeking to challenge the Award passed by the first respondent Industrial Tribunal made in I.D.No.115 of 2000 dated 30.01.2010. https://hcservices.ecourts.gov.in/hcservices/ 2. By the impugned Award, the Tribunal dealt with the dismissal of the 16 workmen covered by the Government Order of reference in G.O.(D).No.271, Labour and Employment, dated 27.03.2002 which was raised by the second respondent Trade Union. 3. The Industrial Tribunal, by its Award dated 30.01.2010 held that in respect of Sl.No.15, Velusamy as he had resigned and settled his account, he is not eligible to get any benefit. In so far as Sl.Nos.11 and 15 M/s.Ramasamy and Rajendaran were concerned, no relief was granted to them as they have also settled their accounts. In so far as Sl.No.13 Mahadevan, Sl.No.2 Mani and Sl.No.1 Thangasamy were concerned as they had reached the age of superannuation, though the order of dismissal as against them was set aside, the Tribunal, after declaring that they are deemed to be in service also held that they were entitled to 50% of the backwages from the date of dismissal till the date of superannuation. Excluding those 5 workers, the dismissal orders of other 10 workers were set aside and they were directed to be reinstated with continuity of service but only with 50% of the backwages. 4. The writ petition was admitted on 27.04.2010. Pending the writ petition, in M.P.Nos.1 to 10 of 2010, this Court granted them interim relief on condition that the petitioner Management deposits 50% of the backwages to the credit of the ID. On such deposit, the Tribunal was directed to invest the amounts in a long term Fixed Deposits, initially for a period of three years. In respect of A.Govindan, it was noted that he had reached the age of superannuation on 04.04.2010 and he was not eligible for payment under Section 17-B of the Industrial Disputes Act. But the Management was directed to pay Rs.25,000/- as adhoc payment. In respect of Mp.Nos.3 to 10 filed by other workers, a direction was given to pay Rs.4,065/- as monthly salary towards 17-B wages with liberty to the Management to move the Court in case any workmen is engaged on gainful employment. 5. Heard the arguments of Ms.D.Veda, learned counsel for the petitioner Management and Mr.V.Prakash, learned Senior Counsel leading Mr.T.Ramkumar, counsel for the second respondent Trade Union. 6. It is the case of the second respondent Trade Union that the petitioner Management was part of the larger TVS Group and they never allowed any healthy trade Union to come up in the industry. Extraordinary conditions were unilaterally on them. After the formation of the second respondent Union, they have raised several disputes. In the petitioner company, the work of the moulders involved in the process of cures of rubber products. https://hcservices.ecourts.gov.in/hcservices/ The quality control of the manufacturing products was done by a separate team consisting of a Manager, a Supervisor and 10 workmen. The Management disbanded the said quality control team and directed the moulders themselves to do the quality control work on the promise that they will be paid higher wages for the extra work done by them. They also directed the moulders to put all the produced rubber washers in a gunny bag and to tie them. Earlier this work was done by another Work team. For doing this extra work, the Management also promised to pay higher wages. If the work which was given additionally, if done by the workmen, it may require one hour more to finish the work. For doing the work for extra one hour, no over time wages were paid to them. There was also no work load settlement with the Union regarding production norms. During the year 1998, unilaterally, the work load of the workers were increased without due notice. 7. The Union raised an industrial dispute and the dispute is still pending. Even during the pendency of the dispute, the Management brought a weighing machine to the production area and orally directed the workers to weigh all the manufactured items after the shift hours. This action of the Management was contrary to Section 33(1)(a) of the I.D.Act as no approval of the Conciliation Officer was obtained. But their dispute relating to the unilateral imposition of service condition was declined to be referred by the Government. When the members of the second respondent Union reported to work, the Management refused to permit them to do the old type of work and hence, they suspended 16 workers. Subsequent to their suspension, charge memos were given to them and domestic enquiries were conducted only in respect of 13 workers. In respect of M/s.Thangasamy and Harimurthy, they were straightaway dismissed without affording any opportunities. The enquiries were held against the principles of natural justice. 8. Thereafter, an industrial dispute was raised which was referred to for adjudication by G.O.(D).No.271 Labour and Employment, dated 27.03.2002. On such reference, the second respondent Union filed a claim statement dated 14.03.2001. Notice was issued to the petitioner Management. On receipt of the notice, the Management filed a counter statement dated 12.07.2002 justifying the dismissal. 9. Before the Industrial Tribunal, 14 workers examined themselves individually as W1 to W14. On the side of the Management, one K.Damotharan was examined as M.W.1. While on the side of the workers, 151 documents were filed and marked as Exs.W1 to W151, on the side of the petitioner Management, 248 documents were filed and marked as Exs.M1 to M248. https://hcservices.ecourts.gov.in/hcservices/ 10. It must be noted that the same Trade Union's dispute in I.D.No.14 of 1997 relating to the introduction of production targets without notice under Section 9A of the I.D.Act was upheld by the Tribunal vide Award dated 20.09.2007 when the second respondent Union challenged the said Award in W.P.No.13921 of 2000, it was rejected by this Court vide judgment dated 22.03.2010. This Court held that there was no case for interfering with the introduction of new production norms. 11. The Industrial Tribunal framed six issues on the Industrial Dispute. The first issue was whether there was any violation of Section 33 of the I.D.Act? The Tribunal found that there was no violation of Section 33(1)(a). With reference to issue Nos.2 to 4 relating to the conduct of the enquiries, the Tribunal found that there was no infirmity with the procedures adopted in the enquiry. Even in case of the ex parte enquiries, it held that sufficient opportunities were given to the workers. With reference to the last two issues, viz., 5 and 6 relating to the penalties, the Tribunal found that the Management did not take into consideration the magnitude, nature and degree of misconduct and the circumstances under which misconduct was exhibited. It noted that in respect of minor misconducts, awarding of major penalties themselves can be construed to be "unfair labour practice" prohibited under Section 25-T read with Schedule V of the I.D.Act. The Tribunal found that the case was pending for more than 10 years and that imposition of a penalty of denial of annual increment for one year will be a sufficient punishment. However, on the question of awarding of backwages, it held that the same is not automatic and therefore, in the interest of justice 50% of backwages can be given to the workmen. 12. Attacking the relief given by the Tribunal, the learned counsel for the petitioner Management contended that a soft glove treatment to the delinquent workers in a factory is likely to result in chaos, ultimately harming and damaging beyond repair the national discipline (Refer para 8 of the judgment reported in 1988 II CLR 142 [Manager, Central India Flour Mills, Bhopal v. Mohd Ishaq Sagir and Another] 13. The learned counsel further relied upon a judgment of this Court reported in 2002 (1) CLR 879 [G.M.M.Co. Ltd v. Labour Court, Madras and another] for contending that while exercising jurisdiction under Section 11-A of the I.D.Act, the Labour Court ought to have gone into the evidence and then decide the matter. 14. The learned counsel also relied upon the judgment of the Supreme Court reported in 2006 SCC (L&S) 429 [State of M.P. And others v. Arjunlal Rajak] for contending that backwages should not be granted mechanically, even if the Court had come to a conclusion that a termination was invalid. https://hcservices.ecourts.gov.in/hcservices/ 15. The learned counsel further referred to the judgment of the Supreme Court reported in 2009 (4) L.L.N.91 [Biecco Lawrie, Ltd., and another v. State of West Bengal and another] for contending that even in cases where workmen were found guilty of abusing the supervisors and found negligent in duty the Court should not order reinstatement. If the work assigned to a worker is not performed even in such circumstances, it should not be a ground to set aside a valid dismissal order. 16. Lastly, the learned counsel relied upon the judgment of the Supreme Court reported in 2009 (4) L.L.N.720 [Uttar Pradesh State Road Transport Corporation v. Nanhe Lal Kushwaha] to show that in that case a Conductor who was holding a position of trust was found guilty of misappropriation and his dismissal was held to be valid. 17. Per contra, Mr.V.Prakash, learned Senior Counsel for the second respondent Union submitted that the Tribunal had taken note of all relevant factors before granting appropriate relief. He also submitted that the Tribunal had rejected the grounds raised by the workmen with reference to the procedure adopted in the enquiry as well as on the introduction of new Rules relating to achieving production targets. It is only on the question of quantum of punishment, the Tribunal found that the dismissal was unjustified. While ordering reinstatement in respect of eligible workers, the Tribunal had reduced the quantum of backwages to 50%. Hence, the Award did not call for any interference. 18. Since the second respondent Trade Union has not filed any separate writ petition challenging the denial of 50% of the backwages as well as other findings recorded by the Tribunal, it is unnecessary to go into other issues. The only question arises for consideration is whether the Tribunal had correctly exercised its power under Section 11-A of the I.D.Act and whether it was legal and justified? 19. In this case, the Tribunal while awarding 50% of the backwages had really struck a balance. The Supreme Court vide its judgment reported in 2009 1 SCC 695 [Laxmi Rattan Cotton Mills Ltd. v. State of Uttar Pradesh] has held that though the Labour Court has wide discretion in the matter of awarding of backwages, but however, the said power must be exercised judiciously. 20. In the present case, all that the concerned workers sought from the Management was that they should be paid separately for the extra work introduced by the Management. The mere fact that the other workers started doing the extra work without demanding extra payment and it is the only the workmen https://hcservices.ecourts.gov.in/hcservices/ who were dismissed were insisting for extra payment will not make the action of the Management any way justified so as to inflict a serious punishment on these workmen. May be they were advised by the Union to stand together to resist the Management from imposing new conditions of employment. But the fact that they have failed in proving the illegality of such a move can be a good ground to deny a portion of the backwages. The Tribunal not only denied 50% of the backwages but also imposed a minor penalty viz., increment cut for one year as a sufficient punishment. 21. Under the circumstances, this Court is not inclined to accept the contentions of the petitioner Management. The Award of the Industrial Tribunal dated 30.01.2010 is upheld. The writ petition stands dismissed. No costs. In view of the dismissal of the writ petition, it is open to the second respondent Union to move the Tribunal for withdrawal of the amount lying in deposit. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. svki To 1.The Regional Director, The Employee's State Insurance Corporation, Chennai. 2.The Industrial Tribunal, High Court Buildings, Chennai 600 108. 1 cc to Mr. Meenakshisundaram, Advocate, Sr. 14668 1 cc to Mr.T. Ramkumar, Advocate, sr. 14219 W.P.No.8019 of 2010 DM (CO) kk 9/3 https://hcservices.ecourts.gov.in/hcservices/