IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.17628 and 17629 of 2001 The Management of Space Foods Pvt Ltd., Kottivakkam, Chennai 600 096 ..Petitioner in W.P.No.17628 of 2001 The Management of Gum India Limited VOC Street Old Mahabalipuram Road, Kottivakkam, Chennai 600 096. ..Petitioner in W.P.No.17629 of 2001 Vs. 1. The Presiding Officer, II Addl.Labour Court, Chennai. ..1st respondent in both W.Ps. 2.K.Venkatesan 3.K Ranganathan 4.S.R.Meena 5.M.Rani ..Respondents 2 to 5 in W.P.No.17628 of 2001 6.R.Shanthi 7.V.Lakshmipathy ..Respondents 2 & 3 in W.P.No.17629 of 2001 Prayer in W.P.No.17628 of 2001 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the 1st respondent in I.D.Nos.645, 647, 648 and 649 of 1995 and quash its award dated 21.12.2000. Prayer in W.P.No.17629 of 2001 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the 1st respondent in I.D.Nos.644 and 646 of 1995 and quash its award dated 21.12.2000. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :: Mr.John for M/s.T.S.Gopalan & Co For respondents :: No appearance COMMON ORDER The two Writ Petitions were filed by the management. In the first Writ Petition the challenge is to the common award passed by the 1st respondent Labour Court in I.D.Nos.645, 647, 648 and 649 of 1995 and quash its award dated 21.12.2000. The second Writ Petition is filed by another management challenging the same in common award in respect of I.D.Nos.644 and 646 of 1995 dated 21.12.2000. 2. Both the Writ Petitions were admitted on 26.9.2001. Pending the Writ Petition, this Court granted interim stay on the condition that the petitioner management pays the arrears of salary payable to the contesting respondents within four weeks and also to continue to pay their monthly salaries on or before 5th of every month on production of non-employment declaration issued by the contesting respondents. 3. When the matter came up on 15.9.2003, the learned counsel for the management reported that he was unable to inform this court regarding the compliance of the conditional order. Therefore, in the absence of such information, the interim stay granted was already vacated. Mr.John, learned counsel for the petitioners is also not able to confirm whether the monthly wages as directed by this Court in terms of 17-B were paid to the workmen or not. 4. Initially this Court wanted to dismiss the Writ Petition on the short ground that since the petitioner management, which is seeking for discretionary relief should not be allowed to flout the interim orders passed by this Court and it was unnecessary to go into the merits of the Writ Petitions. However, the learned counsel for the petitioners brought to the notice of this Court the judgment of the Supreme Court in Hindustan Zinc Ltd. v. Industrial Tribunal, reported in (2001) 10 SCC 211. In that case, the Supreme Court held as follows: "The High Court without examining the contentions regarding the correctness of the conclusion reached by the Tribunal, firstly, as to the scope of interference when the validity of the domestic enquiry had been upheld and secondly, on merits of the matter decided the writ petition. The High Court noticed that the order made under Section 17-B of the Industrial Disputes Act, 1947, had not been complied with and therefore there was no necessity to go into the merits of the case. This conclusion is rather surprising. The High Court ought to have dealt with the merits of the case and decided the case but it went at a tangent and proceeded to https://hcservices.ecourts.gov.in/hcservices/ dispose of the matter for non-compliance with the interim order made by the High Court. Under the circumstances, we set aside the order made by the High Court and remit the matter back to the High Court for fresh consideration in accordance with law. Considering the fact that Respondent 2 workman had been terminated from service as early as the year 1980, we hope the High Court will dispose of the matter as expeditiously as possible." 5. Therefore, even in the absence of the workmen before this Court, this Court is bound to examine the merits of the award passed in both the Writ Petitions. In both the Writ Petitions, non- employment of the contesting respondents were brought as industrial disputes before the 1st respondent Labour Court. The 1st respondent Labour Court assigned various I.D.Numbers and proceeded to decide those matters. 6. Before the Labour Court, in both the Writ Petitions, on behalf of the workmen, one witness by name Venkatesan was examined as W.W.1 On the side of the workmen, 15 documents were filed and they were marked as Ex.W.1 to W.15. The petitioner management examined four witnesses as M.W.1 to M.W.4. They filed 44 documents, which were marked as Ex.M.1 to M.44. On the basis of these materials, a common award was passed, which is impugned in both Writ Petitions. 7. The facts leading to the case are as follows: The management states that there were three factories, namely M/s.Gum India Limited is having two units and one unit of M/s.Space Foods Private Limited. In the factory, they were producing Big Fund Bubble gum, Fresh N Up coated bubble gum and also Fresh N up Chewing gum. Each factories have separate business. Since the petitioner factory in W.P.No.17628 of 2001 was situated in a low lying area, due to monsoon rains, factory premises used to flooded, thereby no work will take place for four months in each year. Therefore, the factory was shifted to the Old Mahabalipuram Road from the original place. In view of the shifting of the factory, these workmen were accommodated in the other factory. At that time there were 17 men workers and 24 women workers. 8. A new trade union was started in the factory and they indulged in violence. In order to prevent them from indulging in violence, a lock out was declared on 2.8.1993. On the intervention made by the Conciliation Officer, the lock out was removed on 16.8.1993. The workmen were also paid wages for the period of lock out. But, however, the workmen mistook the act done by the management as weakness and continued to indulge in illegal activities. They also resorted in go-slow strike and refused to obey the orders of the superiors. A settlement was signed between the https://hcservices.ecourts.gov.in/hcservices/ parties granting bonus for the year 1992-1993 at the rate of 8.33% bonus and 6.67% as Ex-gratia payment. 9. On 8.1.1994 around 9 p.m, the workers along with their supporters in the union marched to the office of the factory Manager and shouted slogans against him. They also prevented the officers including the Consultants from moving out of their office from 9 p.m on 8.1.1994 till 4 pm on 9.1.1994. They indulged in gherao inside the factory office. The officers were made to stay without food and were subjected many hardships. Because of the illegal activities of the workers, the management suspended its operation on 13.1.194. A show cause notice was given to the workers for having gone on a gherao. Suspension orders were also passed on 24.1.1994. Because of the surcharged atmosphere, the management could not take normal procedure in removing those workers and the workers were dismissed from service. The contention of the workers that it was a case of retrenchment under Section 2(oo) of the Act is not correct and the payment amount of compensation to the workers will not arise. The question of principle of last come will first go also will not arise as these workers have been punished for specific acts of misconduct. 10. The Labour Court on the basis of the materials accepted the evidence of M.W.2 to M.W.4 and found that the officers were kept under gherao for more than 24 hours. Though it was proved that no specific charge memos were given and enquiries were not conducted, the Labour Court held that even if domestic enquiries were not conducted, the reason for their dismissals can be justified before it. It placed reliance upon the judgment of the Supreme Court in Workmen of Firestone Tyre and Rubber Company of India (P) Ltd. vs. the Management reported in AIR 1973 SC 1227 = 1973 (1) LLJ 295 (SC). The court found that gherao of the officers was proved to the satisfaction of the court. Merely because there was no enquiry conducted against them, it will not become a retrenchment as contended by the workmen. Therefore, it found that the charges were clearly established against the workmen. 11. Alternatively, it was contended before the Labour Court that some of the workmen, namely Mahendran, Kuppan, Manickam, Suvathi, Rani, Sarasu, Gejalakshmi, Vasantha, Sujitha and Rajender, who were also dismissed have been taken back to service. Therefore, there cannot be discrimination in the matter of non-employment and the court must invoke its power under section 11-A of of the Industrial Disputes Act. 12. On the side of the management, it was contended that those workers have admitted their charges and tendered apologies to the management and therefore they were taken back to service. But, so far as the contesting respondents arte concerned, they were the Ring leaders and no indulgence can be shown. But, the Labour Court rejected the said contention and held that they are also eligible for https://hcservices.ecourts.gov.in/hcservices/ reinstatement. But for the proved misconduct, it was enough if they were denied backwages. Therefore, the Labour Court directed reinstatement of the contesting respondents without backwages but with service continuity and other attendant benefits. The Labour Court rejected the plea of the management that the workers who tendered apology and taken back to service will stand on a different footing than the workers who are ring leaders. It refused to accept the stand of the management that they must be treated separately. It is this award which is under challenge before this Court. 13. Mr.R.John, learned counsel for the petitioner management contended that the approach of the Labour Court was wholly impermissible. In the guise of exercising power under section 11-A of the Industrial Disputes Act, the Labour Court cannot grant relief to such workmen, who were dismissed for proved misconduct. There is a distinction between persons, who apologized and are taken back to service and those, who gave trouble and against whom specific overt acts were attributed and who are also considered to be ring leaders. Therefore, the Labour Court cannot adopt the same yardstick and invoke its power under Section 11-A of the Industrial Disputes Act. 14. In this context, the learned counsel for the petitioner placed reliance upon a judgment of the Division Bench in Union of India (represented by Divisional Railway Manager), Southern Railway, Tiruchirappally and Registrar, Central Administrative Tribunal reported in 2001(4) LLN 998 . The learned counsel for the petitioner referred to paragraph 6 of the order, where similar contentions were raised. The Court made a distinction between those who were lead and those who were the leaders. The Findings rendered by the Division Bench as found in paragraph 10 read as follows: "10. None of these cases can support the broad claim made by the workman here that he should not be penalised at all merely because the engine driver who identified him had also mentioned the names of three others. These decisions cannot be understood to have laid down that a person who is guilty should be allowed to go scot-free merely because some others who were guilty were not proceeded against. It is not the law that if a binding rule which is to be obeyed on pain of penalty for its breach, when breached by many and some are not brought to book, other violators should also not be brought to book. Any such view would render every statute impossible of enforcement, as it cannot be said that every offender under every statute is always brought to book." 15. The learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in Management of Coimbatore District Central Cooperative Bank vs. Secretary, Coimbatore District Central Cooperative Bank Employees' Association and another reported https://hcservices.ecourts.gov.in/hcservices/ in 2007 (3) LLN 128. The learned counsel for the petitioner brought to the attention of the court the following passages found in paragraphs 35 and 36 as follows: "35. It was then contended on behalf of 53 workmen that if the objectionable act on the part of the workmen was going on strike, all workmen ought to have been treated equally and even-handedly. The management was not right in reinstating 134 employees immediately by depriving similar benefit to 53 employees. It was, therefore submitted that in the facts and circumstances of the case, the High Court was right in considering that aspect. Keeping in view the fact that they (134 workmen) had joined work and resumed duty, they were paid wages also. Since other employees (53 workmen) had not joined duty, the action of the management of non-payment of salary may not be interfered with. But if they would be visited with other penal consequences of stoppage of increment/increments, the action would be arbitrary and unreasonable. 36. We are unable to uphold the contention. In our considered opinion, 53 employees cannot be said to be similarly situated to 134 employees who had entered into amicable settlement with the management and resumed duty in 1972. It is settled law that equals must be treated equally and unequal treatment to equals would be violative of Art.14 of the Constitution. But, it is equally well established that unequals cannot be treated equally. Equal treatment to unequals would also be violative of "equal protection clause" enshried by Art.14 of the Constitution. So far as 134 employees are concerned, they accepted the terms and conditions of the settlement and resumed work. 53 workmen, on the other hand, did not accept the settlement, continued with the strike which was declared illegal and unlawful and in departmental inquiry, they were found guilty. Moreover, they resorted to unlawful actions by administering threat to loyal workers, cannot be said to form one and the same class in which 134 employees were placed. 53 employees, therefore, cannot claim similar benefit which had been granted to 134 employees. Therefore, on this ground, he prayed for setting aside the impugned award. 16. The short question that arises for consideration is whether the Labour Court in having found the misconduct proved on the basis of the materials placed before it, that too for serious misconducts, whether can invoke its power under section 11-A of the Industrial Disputes Act and order their reinstatement? If the reinstatement was https://hcservices.ecourts.gov.in/hcservices/ based upon the apology by some of the workers of the same group can be allowed to join duty on the basis of their apology letters? 17. It is in this context, it is necessary to refer to the judgment of the Supreme Court in Obettee (P) Ltd. v. Mohd. Shafiq Khan, reported in (2005) 8 SCC 46 which has a direct bearing on this case. The Supreme Court in paragraphs 4 to 8 held as follows: 4. It is to be noted that while Chunnu and Vakil accepted the correctness of the charges levelled against them and tendered apology, the respondent workman continued to contest the charges levelled against him. On appreciation of evidence the Tribunal came to hold that merely because no action was taken against Chunnu and Vakil, the position was not the same so far as the respondent workman is concerned. The distinctive features, so far as the respondent workman and the other two, namely, Chunnu and Vakil are concerned, were highlighted by the Tribunal. Accordingly the Tribunal held that the termination of the respondent workman was legal and proper. 5. In the writ petition filed before the High Court the primary stand was that there were no distinctive features so far as the writ petitioner was concerned. The High Court accepted the stand of the respondent workman and held that the distinction made by the Tribunal was clearly an artificial distinction. It was further held that though there was no subsequent apology tendered, the respondent workman had in letter and spirit shown his bona fides by not resorting to any strike subsequent to 2-5-1980 and there was clearly “inferred apology” on the part of the respondent workman. Accordingly the order of termination was set aside and it was directed that the respondent workman was to be reinstated in service if he had not attained the age of superannuation and was to be paid 50% of the back wages from the date of termination till reinstatement. It was further indicated that in case the respondent workman had attained the age of superannuation, then he would be awarded 50% of the back wages from the date of termination till he attained the age of superannuation. 6. In support of the appeal, learned counsel for the appellant submitted that the view of the High Court is clearly untenable. The Tribunal had rightly noted the distinctive features so far as the respondent workman and the other two are concerned. While in the case of Chunnu and Vakil they had given undertakings and had expressed regrets for resorting to illegal strike, there was no such regret expressed by the respondent workman. On the contrary https://hcservices.ecourts.gov.in/hcservices/ he tried to justify his action and even termed the strike on 2-5-1980 to be a legal one. 7. In response, learned counsel for the respondent workman submitted that the Tribunal had taken a hypertechnical view. Even though he had not given undertaking as given by Chunnu and Vakil there was no allegation that he had resorted to any illegal act thereafter. Mere fact that he had tried to justify his action in the proceedings cannot be taken as a distinctive feature to make a departure from the benevolence shown to Chunnu and Vakil. 8. On consideration of the rival stands one thing becomes clear that Chunnu and Vakil stood on a different footing so far as the respondent workman is concerned. He had, unlike the other two, continued to justify his action. That was clearly a distinctive feature which the High Court unfortunately failed to properly appreciate. The employer accepted to choose the unqualified apology given and regrets expressed by Chunnu and Vakil. It cannot be said that the employer had discriminated so far as the respondent workman is concerned because as noted above he had tried to justify his action for which departmental proceedings were initiated. It is not that Chunnu and Vakil were totally exonerated. On the contrary, a letter of warning dated 11-4-1984 was issued to them." This judgment squarely applies to the facts of this case. Therefore, the impugned award passed by the Labour Court is liable to be set aside. 18. It is also worthwhile to refer to the judgment of the Supreme Court in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora, reported in (1997) 3 SCC 72. In paragraph 21, it was observed as follows: "21. The Enquiry Officer on appraisal of the materials before him held that the respondent was actively involved and the brain behind procuring false medical certificates and medical bills not only for himself but for other employees and on the basis of which the reimbursement claims were made by the respondent and other employees. The Corporation sanctioned these reimbursement claims of the various employees which had resulted in monetary loss to the Corporation. Before the Enquiry Officer except the respondent other employees of the Corporation admitted the charges and consequently a minor penalty was awarded to them. The respondent contested the charges levelled against him and denied that he was instrumental in cheating or committing forgery of the medical bills. On consideration of https://hcservices.ecourts.gov.in/hcservices/ the report and findings of the Enquiry Officer, the Disciplinary Authority took a lenient view in respect of other employees. Having regard to the involvement of the respondent in the entire episode, the Disciplinary Authority awarded him the penalty of dismissal from service. The order of dismissal passed by the Disciplinary Authority against the respondent was also affirmed by the appellate authority. Curiously enough, the High Court in its impugned judgment compared the case of the respondent with the other employees who have been awarded a lesser penalty and opined that there is a discrimination resorted to by the Disciplinary Authority in the matter of awarding the punishment. It is this action of the Disciplinary Authority in awarding the penalty being discriminatory and violative of Article 14 of the Constitution. In support of this reasoning, the High Court placed reliance on the decision of this Court in Sengara Singh v. State of Punjab5 and the passage therefrom was reproduced in the impugned judgment which is distinguishable on facts. We have gone through the impugned judgment of the High Court dated 27-5-1993 and were of the view that the High Court was wrong in interfering with the punishment awarded by the Disciplinary Authority. The High Court has totally overlooked the findings of the Enquiry Officer and affirmed by the Disciplinary Authority that the respondent was instrumental in obtaining forged medical bills not only for himself but also for other employees and he was the main actor behind cheating the Corporation. It is because of this finding, the Disciplinary Authority, in our opinion, rightly considered the award of penalty/punishment to the respondent differently than the other employees who although got the benefit of reimbursement on the forged bills but they accepted their guilt before the Enquiry Officer. Having regard to the facts and circumstances of this case, we are of the opinion that the High Court had committed serious jurisdictional error while interfering with the quantum of punishment. There is neither any discrimination resorted to by the Disciplinary Authority nor the punishment awarded to the respondent was disproportionate to his misconduct. The impugned judgment and order of the High Court, therefore, are unsustainable." (Emphasis added). 19. Further, the Supreme Court in Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar,(2003) 4 SCC 364, dealt with the case of alleged discrimination on the imposition of penalty. After referring to the cases arising out of "Wednesbury principle' and the concept of proportionality, the Supreme Court in paragraphs 5 and 6 held as follows: https://hcservices.ecourts.gov.in/hcservices/ "5. According to learned counsel for the employer, after having found that the charges were established the High Court committed an error in interfering with the quantum of punishment. The scope of such interference is extremely limited. After having noted that there was no challenge to the findings, there was no scope for interfering with the quantum of punishment. Some of the charges were of very serious nature and one of the charges related to fabrication and manipulation of records. It is pointed out that even if a co-delinquent has been given lesser punishment, the same cannot be a ground for interference. 6. The scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter." (Emphasis added). 20. In the light of the above, the discretion exercised by the Labour Court under section 11-A of the Industrial Disputes Act cannot merit acceptance. The Labour Court's finding that the persons who have been taken back to service stands on the same footing like the persons, who have been sent out, has been done without there being any concrete materials placed before it. The Labour Court found that the charge of misconduct is very serious and in such cases, the question of reinstating the contesting respondents and that too on serious charge of misconducts will not arise. Even otherwise, the parity found by the Labour Court is based upon a weak foundation not approved by the Supreme Court in the decisions referred to above. 21. In the light of the above, the Writ Petitions are allowed. However, this Court by an order dated 26.9.2001 directed payment of monthly wages for the workmen covered by