IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WA.No. 215 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.5522/2004 Dated 28/11/2008 .................... APPELLANT(S): -------------- B.RAJAGOPAL, 44 YEARS, S/O.G. BALAKRISHNAN NAIR, THOTTIYIL HOUSE, ARUMANOOR PO., 686568, KOTTAYAM. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK B.SHENOY RESPONDENT(S): --------------- 1. JOMY XAVIER, MANAGING PARTNER, WALLIAWARUM PLANTATIONS, KODIMATHA,KOTTAYAM. 2. INDUSTRIAL TRIBUNAL IDUKKI. ADV. SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 GOVT.PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2010, ALONG WITH WA NO. 250 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.215 & 250 of 2009 ---------------------------------------------- Dated 3rd March, 2010. J U D G M E N T Balakrishnan Nair, J. These Writ Appeals are filed against the common judgment of the learned Single Judge in W.P.(C) Nos.5522 and 21226 of 2004. The management and the workman challenged the award of the Industrial Tribunal, Idukki, in I.D.No.42/01, by filing the above Writ Petitions. The learned Single Judge, by the aforementioned common judgment, allowed the Writ Petition filed by the management and dismissed the Writ Petition filed by the workman. Hence, these two Writ Appeals by the workman, challenging the said common judgment. 2. The brief facts of the case are the following : Unless otherwise specifically mentioned, the parties and exhibits are mentioned as referred to in W.P.(C)5522/04, from which W.A.215/09 arises. The appellant was a workman of a coffee estate in Nelliampathy, owned by a partnership firm, viz., Walliawarum Plantations. The first respondent herein is its Managing Partner. It appears, the appellant was apprehending disciplinary action against him. In that context, it is alleged that WA Nos.215 & 250 of 2009 2 he threatened the father of the Managing Partner, of dire consequences to his son, if any action is taken against him. It is also alleged that he, along with his brother threatened one of the partners of the firm, by blocking his car and entering into it. For the above mentioned alleged misconducts, disciplinary proceedings were initiated against the appellant, by issuing a charge memo dated 4.9.1997. A translation of the said charge memo reads as follows :- “Your reply dated 10.9.1997 to the notice dated 4.9.1997 issued to you, has been received. Various assertions in your aforesaid reply having no nexus with the charges levelled against you as per notice dated 4.9.1997, are not being dealt with now. However, your explanations to the charges levelled against you are not satisfactory. Therefore, you are issued a charge sheet as hereunder. “Due to enmity of majority of workmen employed in the coffee and cardamom estate of Walliawaram Plantations situated at Nelliampathy; you while residing in your house at Arumannoor with the knowledge of the management since 24.7.1997, along with your brother, B.Anilkumar acting on your instigation had on several occasions in the month of August 1997 threatened and caused mental pain by stating “Your son will be killed” to Mr.K.M.Xavier residing at Kadakkassery House, Kanjikuzhi, at his house, who is the father of the partners and who is leading a retired life due to sickness and old age. Further, you had on several occasions threatened him over phone stating “I am going to the estate, and if anybody dares to touch me, I will WA Nos.215 & 250 of 2009 3 kill your son.” Further, on 1.9.1997 at about 3 p.m., when Shri.Johny Joseph who is one of the owners of the estate was on his way to his house at Ayyarkunnam, you along with your brother, B.Anilkumar obstructed the car while in front of Ayyarkunnam High School, having followed and overtaken it. After obstructing the car when you shouted “Can't you issue notice terminating my services, you rascal?” and when Mr.Johny replied asking you to pose it to the person authorized for it at Kottayam and not to him, you again shouted “That useless is of no use.” You forcefully got into the car stating that he should not be allowed to leave. When the car started slowly moving forward, you tried to stop the car by pushing the gear lever, tried to take off the switch key, caught hold of his hand and switched off the car by forcibly pressing the clutch. When you threatened to stab him with knife, people around gathered hearing the commotion and thereupon you alighted from the car and went off with your brother by scooter.” To conduct an enquiry into the matter, Shri.Santosh Modayil, Advocate, Kottayam-2 is appointed as the Enquiry Officer. The venue, date, time, etc. will be informed to you by him and you are required to participate in the enquiry conducted by him. In the enquiry you will be given all opportunity to cross- examine evidence against you and to adduce evidence from your side. In case of your non-participation in the enquiry, enquiry will be proceeded ex parte and further proceedings will be initiated. Pending the said enquiry proceedings, your suspension as per notice date 4.9.1997 is hereby extended.” The appellant filed his reply, denying the allegations. The WA Nos.215 & 250 of 2009 4 Enquiry Officer, so appointed, enquired into the charges. The said officer, who is an Advocate, submitted the enquiry report, finding the appellant guilty of the aforementioned two allegations. The first respondent accepted the enquiry report, after considering the objection of the appellant to the same. Based on the said report, the appellant was dismissed from service by the first respondent, by order dated 7.4.1998. The appellant/workman raised an Industrial Dispute before the Conciliation Officer, under Section 2-A of the Industrial Disputes Act, 1947 (for short, 'the Act'). Since the conciliation efforts failed, the matter was reported to the Government, which in turn, referred the dispute for adjudication, as per Government Order dated 18.6.2001. The issue referred was “Whether the dismissal of Shri.B.Rajagopal, workman by the management of Walliawarum Plantations is justifiable? If not, what relief the workman is entitled to?” 3. The Tribunal, as a preliminary issue, found that the enquiry was validly held and also came to the conclusion that the aforementioned charges were proved, based on the evidence on record. Thereafter, the Tribunal proceeded to consider whether the punishment imposed was proper, invoking WA Nos.215 & 250 of 2009 5 its power under Section 11-A of the Act. The Tribunal took the view that the punishment of dismissal awarded to the workman was too harsh and disproportionate to the gravity of the misconduct proved against him. Based on that finding, the Tribunal further ordered that the management should reinstate the workman, without back wages. The Tribunal was of the view that the denial of the entire back wages for the period he was kept out of service, will serve as adequate punishment. Ext.P1 is the award passed by the Industrial Tribunal, on 31.12.2003. The management challenged the award, by filing W.P.(C) No.5522/2004. The workman, feeling aggrieved by the denial of back wages, filed W.P.(C) No.21226/2004. The learned Single Judge, after hearing both sides, allowed the Writ Petition filed by the management and dismissed the Writ Petition filed by the workman, by the common judgment dated 28.11.2008. As mentioned earlier, the aggrieved worker has, therefore, preferred these two Writ Appeals. 4. We heard Smt.Lakshmi B.Shenoy, learned counsel for the appellant and Sri.E.K.Nandakumar, learned counsel for the first respondent/management. The main point that arises for decision WA Nos.215 & 250 of 2009 6 is whether the learned Single Judge was justified in interfering with the award, by taking the view that for the misconduct proved, the punishment imposed by the management was appropriate. According to the learned Judge, the punishment cannot be described as grossly disproportionate to the gravity of the offence proved. 5. Before going into the above point, we would refer to Section 11-A of the Act and the history behind the introduction of that Section. Section 11-A reads as follows :- “11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.--Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified , it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require : Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take WA Nos.215 & 250 of 2009 7 any fresh evidence in relation to the matter.” (emphasis supplied) This provision was introduced by the Amending Act 45 of 1971, with effect from 15.12.1971. The Parliament decided to introduce the above provision, with the intention of conferring wider powers to the Labour Courts/Industrial Tribunals, when the dispute before them related to dismissal/discharge of workmen from service. The Apex Court, in Indian Iron and Steel Co.Limited v. Their Workmen [1958(1) LLJ 260], while dealing with the powers of the Industrial Tribunals and Labour Courts, in the matter of termination of service of the workmen, held as follows : “In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere, (i) if there is a want of good faith (ii) when there is victimization or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice and (iv) when on the materials, the finding is completely baseless or perverse.” The objects and reasons of the Amending Act, introducing Section 11A read as follows : “In Indian Iron and Steel Co.Limited v. Their Workmen [1958] I L.L.J. 260, the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has WA Nos.215 & 250 of 2009 8 observed that in cases of dismissal for misconduct the, Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimization, unfair labour practice, etc. on the part of the management. 2. The International Labour Organization, in its recommendation (No.119) concerning “Termination of employment at the initiative of the employer” adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination, among others, to a neutral body such as an arbitrator, a Court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given for the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages should be paid adequate compensation or afforded some other relief. 3. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power, in case wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new S.11A is proposed to be inserted in the Industrial Disputes Act, 1947.” WA Nos.215 & 250 of 2009 9 The above quoted objects and reasons would show that one of the reasons for the Parliament to introduce the above provision was the aforementioned decision of the Apex Court in Indian Iron and Steel Company's case (supra). The Parliament also took note of the recommendation of the International Labour Organization to provide a neutral body, such as an Arbitrator, a court, etc. to look into the grievance of the workman, who is aggrieved by the termination of his employment. The objects and reasons further clarify that in the case of discharge or dismissal, the Tribunal's power should not be limited and it should have power to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, it thinks fit. 6. The above legislative history would show that after the introduction of Section 11-A, the Industrial Tribunal has got wider powers to deal with the case of dismissal of a workman. Interpreting the scope of the above Section, the Gujarat High Court has rendered an illuminative judgment. M.P.Thaker, C.J., as His Lordship then was, speaking for the Division Bench of the Court in R.M.Parmar v. Gujarat Electricity Board, Baroda WA Nos.215 & 250 of 2009 10 (1982 LAB.I.C. 1031), after referring to the objects and reasons of the Amending Act, observed as follows : “The matter regarding imposition of penalty on employees (it was so realized by International Labour Organization, an international body) could not be left solely to the discretion of the management even if the employee concerned is found to be guilty of the charge levelled against him, presumably because of the conditional approach of the disciplinary authority with his inbuilt and inherent pro-employer-anti-employee bias. That is why in obeisance to the felt needs of the time it was considered necessary to entrust this most vital function to a neutral body. With the end in view that the employees were not treated more harshly than they deserved in the context of facts and circumstances of the case, and that the employee could get the protection of the Labour Court which could be trusted to make a just and fair approach, the provision was introduced by way of an amendment. It is a benevolent power conferred on the Labour Court and has to be exercised in the spirit in which the provision has been enacted in order to further the intendment and purpose of the legislation, keeping aglow before the mental eye some very important dimensions of the matter, viz. : (1) There is widespread unemployment in our country and it is difficult to secure a job to earn enough to keep body and soul together unlike in developed countries. (2) The State does not provide social benefits like unemployment allowance to enable a discharged employee to sustain himself and his family to some extent, as is being done in the developed countries. (3) In imposing punishment on an erring employee an enlightened approach informed with the demands of the situation WA Nos.215 & 250 of 2009 11 and the philosophy and spirit of the time requires to be made. It cannot be a matter of the ipse dixit of the disciplinary authority depending on his whim or caprice. (4) Be it administration of criminal law or the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the 'end' in itself. Punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered-- 1. In a disciplinary proceeding for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath. 2. The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child. 3. It is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of them. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault. 4. In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide. WA Nos.215 & 250 of 2009 12 5. When different categories of penalties can be imposed in respect of the alleged fault one of which is dismissal from service, the disciplinary authority perforce is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in service the maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without seriously jeopardising the interest of the employer the disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty why a lesser penalty cannot be imposed. 6. It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned. 7. When the disciplinary proceedings end in favour of the employee the employer has often to pay back wages say for about 5 years without being able to take work from the employee concerned. On the other hand, the employee concerned would have had to suffer economic misery and mental torture for all WA Nos.215 & 250 of 2009 13 these years. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed instead of a lighter one. 8. Every harsh order of removal from service creates bitterness and arouses a feeling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. It does more harm than good to the employer as also to the society. 9. Taking of a petty article by a worker in a moment of weakness when he yields to a temptation does not call for an extreme penalty of dismissal from service. More particularly when he does not hold a sensitive post of trust (pilferage by a cashier or by a store-keeper from the stores in his charge, for instance, may be viewed with seriousness). A worker brought up and living in an atmosphere of poverty and want when faced with temptation, ought not to, but may, yield to it in a moment of weakness. It cannot be approved, but it can certainly be understood particularly in an age when even the rich commit economic offences to get richer and do so by and large with impunity. (And even tax evasion or possession of black money is not considered to be dishonourable by and large). A penalty of removal from service is therefore not called for when a poor worker yields to a momentary temptation and commits an offence which often passes under the honourable name of Kleptomania when committed by the rich. The Labour Court in exercising its power to reduce the penalty has to inform itself of these considerations and play the role assigned to it by its creator loyally and faithfully and in harmony with the enlightened spirit which permeates the WA Nos.215 & 250 of 2009 14 legislation.” We are in respectful agreement with the above view expressed by the Gujarat High Court. 7. In this context, we think, it will be apposite to incidentally refer to the powers of this Court, while judicially reviewing the decision of a Labour Court or an Industrial Tribunal. Though it is elementary, it has to be restated that doctrine of ultra vires is the basis of judicial review. [See Administrative Law (10th Edition-by Wade and Forsyth)]. “The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law. The juristic basis of judicial review is the doctrine of ultra vires. To a large extent the courts have developed the subject by extending and refining this principle, which has many ramifications and which in some of its aspects attains a high degree of artificiality. Where the empowering Act lays down limits expressly, their application is merely an exercise in construing the statutory language and applying it to the facts. Thus if land may be taken by compulsory purchase provided that it is not part of a park, the court must determine in case of dispute whether the land is part of a park and decide accordingly. If the Act says 'provided that in the opinion of the minister it is not a park', the question WA Nos.215 & 250 of 2009 15 is not so simple. Reading the language literally, the court would be confined to ascertaining that the minister in fact held the opinion required. But then the minister might make an order for the acquisition of land in Hyde Park, certifying his opinion that it was not part of a park. It is essential to invalidate any malpractice of this kind, and therefore the court will hold the order to be ultra vires if the minister acted in bad faith or unreasonably or on no proper evidence. Results such as these are attained by the art of statutory construction. It is presumed that Parliament did not intend to authorise abuses, and that certain safeguards against abuse must be implied in the Act. These are matters of general principle, embodied in the rules of law which govern the interpretation of statutes. Parliament is not expected to incorporate them expressly in every Act that is passed. They may be taken for granted as part of the implied conditions to which every Act is subject and which the courts extract by reading between the lines. Any violation of them, therefore, renders the offending action ultra vires. As with substance, so with procedure. One of the law's notable achievements has been the development of the principles of natural justice, one of which is the right to be given a fair hearing before being penalised in any way. These principles are similarly based upon implied statutory conditions: it is assumed that Parliament, when conferring power, intends that power to be used fairly and with due consideration of rights and interests adversely affected. In effect, Parliament legislates against a