IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.15101 of 2001 and W.P.No.620 of 2002 The Management of TI Cycles of India, Ambattur, Madras – 600 053. ..Petitioner in W.P.No.15101 of 2001 T.Gurumoorthi ..Petitioner in W.P.No.620 of 2002 Vs 1.The Presiding Officer, I Additional Labour Court, Madras. ..1st Respondent in both WPs 2.T.Gurumoorthi ..2nd respondent in W.P.No.15101 of 2001 3.The Management of M/s.T.I.Cycles of India, Ambattur, Chennai – 600 053. ..2nd Respondent in W.P.No.620 of 2002 W.P.No.15101 of 2001 : PRAYER:- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records of the first respondent in I.D.No.1122/92 and quash his award dated 21.03.2001. W.P.No.620 of 2002: PRAYER:- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records from the files of the second respondent in I.D.No.1122 of 1992 and quash its impugned Award dated 21.03.2001 made therein https://hcservices.ecourts.gov.in/hcservices/ insofar as it denied and negatived the claim of the petitioner for 50% backwages. For Petitioner W.P.No.15101 of 2001 : Mr.S.Ravindran for M/s.T.S.Gopalan and Co. W.P.No.620 of 2002 : Mr.S.Kumarasamy For Respondents W.P.No.15101 of 2001 : Mr.S.Kumarasamy W.P.No.620 of 2002 : Mr.S.Ravindran for M/s.T.S.Gopalan and Co. C O M M O N O R D E R These two writ petitions were came to be listed on being specially ordered by the Hon’ble Chief Justice vide order dated 07.04.2010. 2. Heard the arguments of Mr.S.Kumarasamy, learned counsel for the workman and Mr.S.Ravindran learned counsel appearing fro M/s.T.S.Gopalan for the Management. 3. W.P.No.15101 of 2001 was filed by the Management seeking to challenge the Award in I.D.No.1122 of 1992 dated 21.03.2001. By the impugned Award, the Labour Court directed reinstatement with service continuity and 50% of the wages to the workman. The writ petition was admitted on 21.08.2001. Pending the writ petition, an order of interim stay was granted. 4. Subsequently, the workman took out applications being WPMP Nos.30297 and 30298 of 2001. The said applications as well as the application filed by the Management were disposed of by a common order dated 21.12.2001. This Court directed the Management to deposit a sum of Rs.86,250/- to the credit of the Industrial Dispute and on such deposit, the workman was permitted to withdraw Rs.43,000/-. The balance amount was directed to be invested in the Indian Bank, High Court Extension counter initially for a period of three years and subsequently to be renewed periodically until the disposal of the writ petition. The workman was also permitted to withdraw quarterly interest accrued on such deposit. A further direction was also given to the Management to pay Rs.1500/- being the last drawn wage to the workman from the month of August 2001 till the disposal of the writ petition in terms of the Section 17-B of the I.D.Act. 5. In the meanwhile, the workman filed W.P.No.620 of 2002 challenging that portion of the same award by which 50% of the backwages were deprived. The writ petition was admitted on 19.03.2002. https://hcservices.ecourts.gov.in/hcservices/ 6. In view of the interconnectivity between the two writ petitions, they were heard together and a common order is passed. 7. For the sake of convenience, parties are referred to as the Management and workman. 8. The facts leading to the filing of the two writ petitions are as follows: The workman was employed by the Management as ITI Machinist in the tool room with effect from 31.08.1981. He was an active member of the trade union with Registration No.1714 and was in the Executive Committee till 1978. The Union to which the workman belonged was the only recognized trade union. During 1978, in view of the agitation conducted by that union there was suspension of operations for a period of 10 months and the recognition given to the Union was withdrawn. A rival trade union having affiliated to INTUC was started. The Management began dealing with that Union and also entered into a settlement with that minority union. Depsite the fact that the union do not have the substantial following, the Management entered into a settlement with INTUC union on 17.08.1990. The workman protested against the signing of the settlement. On 18.08.1990, the Workman was suspended and a charge memo dated 23.08.1990 was given to him. It was alleged that on 17.08.1990, the workman went inside the factory premises and conducted workers' meeting and threatened the workmen from doing work. He also shouted slogans in front of the Personnel Department and indulged in Dharna. A further charge memo dated 05.09.1990 was also given stating that on 21.08.1990 at about 6.45 a.m the Workman along with eight workers and 50 outsiders broke open the wire mesh and broke the window screen of the car therein including the cabin glass in the administrative building. He also pelted stones against the workers who were working inside the factory. 9. It was curious that though the incident had allegedly taken place on 21.08.1990, in the earlier charge memo dated 23.08.1990, there was no reference to these incidents. The Management had took more than 14 days to frame a charge memo. After explanation to both the charge memos, an enquiry was ordered to be conducted on 13.11.1990. Without giving due opportunity and without furnishing the documents, the Workman was found guilty of the charges by the Enquiry officer. On the basis of the said enquiry, he was dismissed from service with effect from 29.01.1992. Even for the conduct of Dharna, in which more than 100 workmen had participated. When they suspended 18 workers for that incident subsequently, they were taken back without any enquiry. Even in respect of M/s. Krishan, and Mohanan, Clerks who were proceeded with enquiries were ordered to be reinstated. https://hcservices.ecourts.gov.in/hcservices/ 10. As against the dismissal, the workman raised a dispute. Since no compromise was possible, a failure report dated 20.07.1992 was given to him. On the strength of the report, the Workman filed a claim statement before the Labour Court on 12.08.1992. The Labour Court registered the dispute as I.D.No.1122 of 1992 and issued notice to the Management. The Management filed a counter statement dated Nil (April 1993). Before the Labour Court, on behalf of the Workman, 7 documents were filed and they were marked as Exs.W1 to W7. On the side of the Management, 69 documents were filed and they were marked as Exs.M1 to M69. 11. The Labour Court though held that the enquiry was conducted in a fair and proper manner, but there was no evidence to hold that the workman was guilty of the charges. The findings rendered by the Enquiry Officer was not legally supportable. The other argument that since the Management had lost confidence on the workman and therefore, in any event he should not be given the benefit of reinstatement and should be given only compensation was also rejected by the Labour Court. It is in that view of the matter, the relief of reinstatement with 50% of the backwages was given to the workman. 12. Mr.S.Ravindran, learned counsel appearing for M/s.T.S.Gopalan and Co. for the Management contended that the Award of the Labour Court was liable to be set aside. Since the Labour Court had upset a well reasoned finding given by the Enquiry Officer. That the workman had indulged in grievous acts of misconduct did not warrant the relief of reinstatement that too with a portion of the backwages. 13. In this context, he placed reliance upon a judgment of the Supreme Court in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, (2006) 6 SCC 187. In paragraph 22, it was held as follows:- "22. We may also beneficially refer to a judgment rendered by a three-Judge Bench of this Court in M.P. Electricity Board v. Jagdish Chandra Sharma. This Court held that the tribunals would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Moreover, the Labour Courts must act within the four corners of the statute concerned, in terms of the provisions thereof. When the Labour Court had held that Charge 4 stood proved, no interference by the learned Single Judge or by the Division Bench was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised capriciously and arbitrarily in spite of the finding that Charge 4, with regard to the pilferage, has been proved beyond any doubt. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement was shockingly disproportionate in the nature of Charge 4 found proved. When Charge 4 is https://hcservices.ecourts.gov.in/hcservices/ proved, which is grave in nature, interference with the punishment of dismissal cannot be justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved." 14. The learned counsel also placed reliance upon a judgment of the Supreme Court in A.P. SRTC v. Raghuda Siva Sankar Prasad,(2007) 1 SCC 222. The learned counsel contended that the enquiry report was rendered after the departmental enquiry was conducted in a fair and reasonable manner and the workman was given ample opportunity to defend himself. The Labour Court also upheld the validity of the enquiry and therefore, the Labour Court ought not to have substituted its subject to opinion in the place of one arrived at by the domestic Tribunal. He placed reliance upon the following passage found in paragraph 22 which is as follows: "22. It is also not open to the tribunal and courts to substitute their subjective opinion in place of the one arrived at the domestic tribunal. In the instant case, the opinion arrived at by the Corporation was rightly accepted by the Tribunal but not by the Court. We, therefore, hold that the order of reinstatement passed by the Single Judge and the Division Bench of the High Court is contrary to the law on the basis of a catena of decisions of this Court. In such cases, there is no place for generosity or sympathy on the part of the judicial forums for interfering with the quantum of punishment of removal which cannot be justified. Similarly, the High Court can modify the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved." 15. The learned counsel also relied upon a judgment of the Supreme Court in West Bokaro Colliery (TISCO Ltd.) v. Ram Pravesh Singh,(2008) 3 SCC 729 to submit the parameters under which a proof is required in a domestic enquiry and also that if two views are possible then the view preferred by the employer should not be set at naught merely because another view is also possible. For the purpose, he relied upon the following passages found in paragraphs 20 and 21 which is as follows: "20. The Tribunal has set aside the report of the enquiry officer and the order of dismissal passed by the punishing authority by observing that the charges https://hcservices.ecourts.gov.in/hcservices/ against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well-settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities. 21. ....In a case where two views are possible on the evidence on record, then the Industrial Tribunal should be very slow in coming to a conclusion other than the one arrived at by the domestic tribunal by substituting its opinion in place of the opinion of the domestic tribunal." 16. The learned counsel also placed reliance upon a judgment of the Supreme Court in Management of Coimbatore District Central Co- operative Bank v. Secretary, Coimbatore District Central Co-operative Bank Employees' Association and another reported in 2007 (3) L.L.N 128. He placed reliance upon the following passage found in paragraph 29, which is as follows: "29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on "no evidence" or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. In the present case, four charges had been levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it." https://hcservices.ecourts.gov.in/hcservices/ 17. Per contra, Mr.S.Kumarasamy, learned counsel for the Workman also place reliance upon the judgment of the Kerala High Court in Rocho (P.B) v. Union of India and others reported in 1984 II L.L.N 841 for the purpose of contending that though the standard of proof that is required in a departmental proceedings may be different in the Court exercising power under Article 226 of the Constitution will not be exercised unreasonably, yet the case of non-employment where there is deprivation of livelihood, the Court can apply the Wednesbury principle on proportionality. For this purpose, he relied upon the following passage found in paragraph 12, which is as follows: "12. It is however, important to note that this self- imposed restraint on the power and duty of the Court may run counter to the development of the safeguards which the law must necessarily provide to protect the life and liberty of subjects endangered by executing the action. The Wednesbury principle stipulated with reference to the conditions imposed on the issue of a licence, and ideally suited to the generality of cases under Art.226 is unworkable where the life or liberty of a subject is at stake, or where he is in danger of being deprived of his sole livelihood. In these grave cases of exceptional importance to a citizen, it is the constitutional responsibility and power of the Court to carefully examine the quality of the evidence relied on by the authority to determine for itself whether the requisite standard of proof has been satisfied and where the truth lies. Where the exercise of an executive power depends on the "precedent establishment of an objective fact", it is the power and duty of the Court in proceedings by way of judicial review to decide whether the "precedent requirement" has been satisfied. The degree of proof in all these cases is as high as the subject-matter is grave. Khawaja v. Secretary of State {(1983) 1 ALL E.R. 163] (vide supra) see the dissenting speech of Lord Atkin in Liversidge v. Anderson [(1941) 4 All E.R.338] which received the approval of the Houses of Lords in I.R.C v. Ressminster, Ltd., [(1980) 1 All E.R.801] see also Eshugbayi Elako v. Government of Nigoria (officer Administering) [1931 A.C. 662]" 18. In the light of the above facts and precedents, he pleaded that the Labour Court was justified in rendering a finding that there was no legal evidence to hold the workman guilty of charges coupled with the fact that several workers who were similarly charge sheeted were restored to service. 19. The learned counsel also placed reliance upon the judgment of this Court in Tamilnadu State Transport Corporation (Madurai Dn.III) https://hcservices.ecourts.gov.in/hcservices/ rep. By its Managing Director v. The Presiding Officer, Labour Court and Devaraj reported in (2005) III LLJ 423 (Mad. In paragraphs 5 to 8 it was observed as follows: "5.It may be mentioned that prior to 1971 the Labour Court could not disagree with the finding of fact of the domestic enquiry officer in view of the decision of the Supreme Court in Indian Iron and Steel Company v. Their Workmen MANU/SC/0084/1957. However, the law was subsequently amended by Section 11A of the Industrial Disputes Act and thereafter the Labour Court/Tribunal can sit in appeal over the findings of the enquiry officer. 6.In the present case the Labour Court has re- assessed/reappreciated the findings and has differed with the findings of the enquiry officer. 7.In writ jurisdiction we cannot interfere with a finding of fact, unless it is based on no evidence. The Labour Court has held that the charges against the workman are not established and we cannot set aside its finding in writ jurisdiction. There is evidence to support the finding, but we cannot go into adequacy of evidence in writ jurisdiction, and we cannot sit as a Court of First Appeal to re-assess or re-appreciate the evidence. 8.A writ of certiorari lies when there is error of law apparent on the face of the record. It does not lie to interfere with findings of fact, unless based on no evidence. Thus there is no force in the writ petition and it is dismissed." 20. Similarly, the learned counsel for the Workman placed reliance upon a judgment of the Division Bench of this Court in Tamil Nadu State Transport Corporation (villupuram) Ltd., Rep. By its Managing Director v. The Presiding Officer, Labour Court and other reported in (2006) I LLJ 313 Mad. He placed reliance upon the following passage found in paragraph 4, which is as follows: "4.After the amendment to the Industrial Disputes Act in 1971 by inserting Section 11A it is well settled that the Labour Court can sit as a court of appeal and https://hcservices.ecourts.gov.in/hcservices/ can reverse findings of fact recorded by the domestic enquiry officer. The finding of the Labour Court is a finding of fact and hence we cannot interfere with the same in writ jurisdiction." 21. In the present case, the Labour Court took into account that there was a delay in framing of the second charge. In the first charge sheet, though it was subsequent to the events covered by the second charge, the same was not mentioned. The Labour Court held that as per Ex.M53 complaint, there were 60 to 75 workers who were indulged in strike. Though it was claimed as per Ex.M1 that the workman had instigated, the same allegation is not made in Ex.M53. Even with reference to the incident taken place on 17.08.1990 such an allegation was not found. In respect of Ex.M36 notice apart from the workman there were nine other workers belong to different unions have also made a similar demand. From a combined reading of Exs.53 and 53 nothing can be deduced that it was at the instigation of the workman, the workers had indulged in work stoppage. The Management sent a complaint in Ex.M57 to the Deputy Superintendent of Police that they had only sought for security to the factory and there was no reference to the conduct of the workman. In the complaint Ex.M58 there was a reference to 9 workers and the name of the workman was mentioned only at Sl.No.5. But a perusal of Ex.M60 showed that there were three trade unions functioning in the factory and it was because of inter union rivalries, certain incidents had taken place. The Labour Count found though action was taken against 18 workers, due to the intervention of the conciliation officer, the enquiry was held only against 9 workers. Even a perusal of the Management witnesses M/s.Veerasamy and Ganapathi nothing was turned out to hold that the workman was responsible for instigating other workers. The Labour Court also held that since the witnesses were examined at a later stage,there was a possibility of tutoring those witnesses to suit the charge memo and there is no evidence to show that the workman had instigated violent activities in the campus. 22. It must be stated that the decision relied on by the learned counsel for the Management has no application to the case on hand. On the contrary, the Labour Court had made a well reasoned Award and found that the workman was not guilty of the misconduct on a re- appreciation of evidence placed before it. This is fully in accordance with the power conferred on the Labour Court under Section 11-A of the I.D.Act. The Labour Court had not deviated from the well established parameters of Section 11-A of the I.D.Act. The Labour Court also deprived 50% of the backwages payable to the workman. Such a discretion is also fully supported by the law laid down by the Supreme Court with reference to the grant of backwages. https://hcservices.ecourts.gov.in/hcservices/ 23. Under the circumstances, this Court do not find any case to interfere with the impugned Award. Hence, both the writ petitions will stand dismissed. However, there will be no order as to costs. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar svki To The Presiding Officer, I Additional Labour Court, Madras. Copy to: The Section Officer, V.R. Section, High court, Madras. + 1 c.c. to Mr. K.M. Ramesh, Advocate. S.R.No.40501. + 1 c.c. to Mr. T.S. Gopalan & Co., Advocates. S.R.No.40390. W.P.No.15101 of 2001 and W.P.No.620 of 2002 MBS (CO) GSK 15.06.2010. https://hcservices.ecourts.gov.in/hcservices/