Case: Mgmt. Of Sundaram Industries Ltd Vs. Sundaram Industries Employee Union

issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.[Explanation.--A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.](2) Form of objection and provisions applicable thereto. - Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.3[***](4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.” 15. The principle underlying the above provision is applicable even to Appeals by Special Leave under Article 136 of the Constitution of India as held by this Court in Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr. 2004 (3) SCC 214 , where this Court observed: “35. A few decisions were brought to the notice of this Court by the learned Additional Solicitor General wherein this Court has made a reference to Order 41 Rule 22 CPC and permitted the respondent to support the decree or decision under appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. Illustratively, see Ramanbhai Ashabhai Patel, Northern Rly. Coop. Society Ltd. and Bharat Kala Bhandar Ltd. The learned Additional Solicitor General is right. But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to courts of superior jurisdiction. A person who has entirely succeeded before a court or tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words “person aggrieved”. In an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be sustained by reversing the finding on some other ground which was decided against him in the court below. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman and also Banarsi v. Ram Phal. This Court being a court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own jurisdiction and not by having recourse to Order 41 Rule 33 CPC though in some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deducible therefrom. However, still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed.” 16. We have, therefore, no hesitation in rejecting the contention that the finding regarding commission of misconduct by the workmen cannot be assailed by the workmen in these proceedings. 17. Even assuming that the finding regarding the commission of misconduct is left undisturbed, the circumstances in which the workmen are alleged to have disobeyed the instructions issued to them did not justify the extreme penalty of their dismissal. At any rate, the Labour Court having exercised its discretion in setting aside the dismissal order on the ground that the same was disproportionate, the High Court was justified in refusing to interfere with that order under Article 226 of the Constitution. There is in any event no compelling reason for us to invoke our extraordinary power under Article 136 of the Constitution or to interfere with what has been done by the two Courts below. But for the fact that there is no appeal or challenge to the denial of full back wages to the workmen, we may have even interfered to award the same to the workmen.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is evident from the above that the discord between the workmen and the management arose entirely out of the management requiring the workmen to place the bag of their production on the electronic weighing scale instead of placing them on the floor at the end of the shift as they were doing till the management issued fresh instructions that demanded that the workmen carry their production bags to the electronic weighing scale for weighment. The workmen considered this additional responsibility to be involving not only additional work in carrying the production bag to the weighing machine but also in devoting additional time beyond the shift hours without any additional remuneration for theis thus evident that the refusal of the workmen to carry out the instructions issued by the management was not without a lawful or reasonable justification. The same could not at any rate be described as contumacious. The essence of the matter was whether the management could, without additional remuneration, ask the workmen who were responsible for attending to the production work alone to do additional work which was hitherto being done by another group of workmen, especially when compliance with the instructions to the workmen would require them to tie their production bags, carry them to the weighing machine, wait in the queue till the process was to be completed and leave only thereafter. In the course of hearing before us, it was fairly conceded by the representative of the appellant that since the number of moulders working in the establishment was fairly large and weighing machines limited in number, the workmen had to wait in a queue for their turn to have their production weighed which was earlier being done by some other workmen who were disbanded. Inasmuch as the workmen concerned had declined to undertake this additional responsibility which was not only consuming additional time but also additional effort they could not be accused of either deliberate defiance or misconduct that could be punished. The Tribunal was in that view wrong in holding that the charge framed against the respondents was proved. Refusal to carry out the instructions requiring workmen to do additional work beyond the shift hours was clearly tantamount to changing the conditions of service of the workmen which was impermissible without complying with the requirements of Section 9-A of the Industrial Disputesassuming that the finding regarding the commission of misconduct is left undisturbed, the circumstances in which the workmen are alleged to have disobeyed the instructions issued to them did not justify the extreme penalty of their dismissal. At any rate, the Labour Court having exercised its discretion in setting aside the dismissal order on the ground that the same was disproportionate, the High Court was justified in refusing to interfere with that order under Article 226 of the Constitution. There is in any event no compelling reason for us to invoke our extraordinary power under Article 136 of the Constitution or to interfere with what has been done by the two Courts below. But for the fact that there is no appeal or challenge to the denial of full back wages to the workmen, we may have even interfered to award the same to the