Case: Binny Ltd Vs. Their Workmen And Anr

2. During the course of the proceedings the Binny Mills Labour Association, Bengal, a registered trade union, sponsoring the cause of the dismissed workmen entered into a settlement with the management whereby the management agreed to reinstate one Ramanatha and the union gave up its demand for reinstatement of three other excluding Kuppuswamy. The Union however withdrew its support to Kuppuswamy from the date of the settlement and the latter stated before the Labour Court that he would conduct his own case"might have thought fit to pass this very order of termination even without going into the past record of Kuppuswamy. But the possibility of his awarding a lesser punishment also cannot be ruled out, altogether.4. We have therefore to examine what happened at the enquiry stage to ascertain whether the labour court was right in acting in the manner it did. The charge against Kuppuswamy formulated by the manager was that :"on the 3rd of this month at about 9.15 a.m. Kuppuswamy had behaved in an insolent manner towards the Warehouse Master Mr. Veeraraghavan by shouting at him and creating a disorderly scene in the Warehouse office.The Manager reminded Kuppuswamy of his written explanation and asked him whether he had anything to add. Kuppuswamy stated that he had stacked a number of pieces which had mounted so high that he apprehended that the same might fall over and he therefore started stacking the pieces in between the pieces already mounted before the examiners. The Manager reminded him that the charge against him was not about stacking pieces but of behaving in an insolent manner toward the Warehouse Manager. Kuppuswamy was asked whether he wanted to call anyone as witness and Kuppuswamy answered in the negative. Veeraraghavan was then examined by the Manager. According to Veeraraghavans statement. Kuppuswamy had disregarded the instructions given to him by one Allam, Assistant Manager by stacking the pieces between the examiners in a manner which would obstruct the free passage for the examiners and that he did so deliberately. Kuppuswamy when produced before the Warehouse Master by Allam is alleged to have flared up and shouted at him saying:"You do not find out our difficulty. You do not listen to our grievances.He is further alleged to have shouted at the top of his voice:"You think we are all slaves ? You do not know how to treat us. Are we not human beings?It was also said that not only was Kuppuswamy was shouting but he was also gesticulating with his hands towards the Warehouse master who found it impossible to control Kuppuswamy and immediately reported the matter to the Mill Manager. Asked whether he had any questions to put to Veeraraghavan, Kuppuswamy answered in the negative and explained that it was his habit to speak in a loud voice. According to him Veeraraghavan did not bear him any enmity. To the next witness for the Management, Allam, Kuppuswamy put only one question, namely, whether he (Kuppuswamy) was not presenting his view of the case to the warehouse master. He had no further questions to put to Allam and stated that Allam did not bear him any enmity. The third witness was one Murty who supported the version given by Veeraraghavan. To Murty also Kuppuswamy put only one question and denied that Murty bore him any enmity. After these three witnesses were examined, the Manager called upon Veeraraghavan to give his remarks about Kuppuswamys conduct and ability and any other relevant information in respect of the respondent whereupon Veeraraghavan stated that Kuppuswamy had been absent without leave or permission on a number of occasions and that about a month back he had behaved in a manner similar to the one with which he was charged but no disciplinary action had been taken against him on the intercession of one Rajagopal. When Veeraraghavan was making this statement, Kuppuswamy intervened and said:"That was because of a misunderstanding as it is my habit to speak in a loud voice.The record of the proceedings shows that Veeraraghavan thereafter went out. The Manager did not ask Kuppuswamy on this occasion as to whether he wanted to put any question to Veeraraghavan on the further testimony given by him or whether he had any explanation to offer. On the spot the Manager passed his order wherein after reciting the facts of the case he recorded that he found Kuppuswamy guilty of misconduct with which he was charged on the testimony of three witnesses. A note was also made that the misconduct was aggravated in view of the fact that the insolent behaviour was unprovoked and there were no extenuating circumstances in the case. The last two paragraphs of the order read:"The only question which remains for me is to decide what punishment should be given to you. While looking into your service records, I find that you are educated up to S.S.L.C. Being an educated person, a better behaviour is expected of you. Further you heard the Departmental Officer inform me during the course of this enquiry that you had been warned by him for absence for 3 days without leave or permission and that you had availed within a span of about 6 months 25 days sick leave No. 9 Much more than all of these, he had let you off only a month earlier for behaving insolently towards him purely because of request of the departmental workers representativeUnder the circumstances, I do not consider that you are a fit person to remain in the employ of the Company and I therefore terminate your services with immediate effect on payment of one months wages and dearness allowance in lieu of notice.

Reasoning:
10. In our view the decision in India Marine Service v. Their Workmen, (1963) 1 Lab LJ 122 = (AIR 1963 SC 528  ) does not help the appellant. There the order of enquiry officer extracted at page 124 righthand column clearly shows that the order of dismissal was based on one of the charges and it was only after recording this decision that the enquiry officer went on to note "in taking the action against you we have also taken into consideration your past record which is very much against you.11. The case of Tat a Oil Mills Co. v. Its Workmen, (1963) 2 Lab LJ 78 (SC), is equally unhelpful to the appellant. There this Court found itself unable to sustain the finding of the Industrial Tribunal that the domestic enquiry was unfair because the concerned workman had not been given sufficient time to submit his explanation. Examining the facts of the case this Court concluded that"the position appears to be that on the two points on which Gupta could have cross-examined Mr. Banjeree if the report had been given to him have been tested in cross-examination, and so we feel no hesitation in holding that the failure to supply Mr. Banerjees report to Gupta has not caused any prejudice to Gupta in the present case.12. The submission that the order of reference is invalid as the Government had no grounds or material to form the opinion about the existence of a dispute in order to enable it to make an order under S. 10 (1) is one which does not merit any consideration. In the absence of the Government from the array of the parties it is not possible to come to any finding as to whether there was any such material or not. But the mere fact that on two previous occasions Government had taken the view that no reference was called for does not entitle us to conclude that there could be no cause for reference in 1966.The enquiry was held on 10th November 1963 and the order of termination of service was made the very same day. The letter of the under Secretary to Government, Labour Department dated August 17, 1964 shows that out of the five workmen in question Government considered the cases of dismissal of three as quite old as having taken place at different times in 1961, 1962 and 1963  as such did not deserve consideration. With regard to the other two, namely, Ramanatha and Kuppuswamy Government was of the view that they had been employed in they year 1963 itself and had put in very short periods of service and as they had been dismissed after proper enquiry no reference was called for. The second letter is dated August 21, 1965 where the Under Secretary merely stated that in view of the decision already taken, the dispute in question did not merit reference for adjudication. From the above it does not follow that Government could not thereafter either change its mind or make an order of reference on fresh material before it. Under S. 10 (1) of the Industrial Disputes Act a reference may be made at any time whenever the appropriate Government is of opinion that any industrial dispute exists or is apprehended. At any rate the point could only be canvassed either in a proceeding to which the Government was a party or in one where the Court was in possession of all the available material relating to the dispute. In the absence of such material the point must be decided against the appellant. In our view the further submission that the order of reference must on the face of it show what impelled the Government to depart from its earlier decision and that in the absence thereof the Court must hold that there were no reasons for such a change of opinion is without any force13. The next submission was that the dispute with regard to the dismissal of Kuppuswamy ceased to be an industrial dispute after the Union ceased to sponsor his case. As already mentioned, during the pendency of the proceedings, before the Labour Court, there was a settlement of the disputes between the Union and the Management with regard to all the employees other than Kuppuswamy. The memorandum of settlement under S. 12 (3) of the Industrial Disputes Act which was put in on the 24June 1967 shows that the Union had proposed that in consideration of their withdrawal of the cases of Madaiah, Ekambaram and Devaiah, Ramanatha and Kuppuswamy may be taken back into service but the Management did not accept the proposal but offered to take back Ramanatha only, which was accepted by the Union. The Union further undertook not to represent Kuppouswamys case or prosecute it before the Labour Court in view of this overall settlement with the Management. It is not necessary for us to consider whether S. 2A of the Act which was introduced in the statute in 1965 has any application to the facts before us. We do not however see any reason to hold that the dispute which had already been referred by Government should cease to be one in respect of a portion of it merely because the Union did not choose to represent the case of a particular dismissed employee. If there was an industrial dispute at the time of reference it would cease to be one merely because the claim of some of the dismissed employees was settled by mutual agreement14. The last point urged before us was that on the facts of the case the Labour Court should not have directed reinstatement but should have allowed compensation to Kuppuswamy in view of the following factors: (1) Kuppuswamy had been dismissed because of gross indiscipline and it was not proper to order reinstatement of a person who might indulge in similar acts in the future. (2) Reinstatement should not have been ordered four years after the dismissal as the Management had already made other arrangements for the work which was formerly being done by Kuppuswamy executed through some other workman. On the first of the above points our attention was drawn to the decision in Shalimar Works Limited v. Their Workmen, (1960) 1 SCR 150     at p. 159 = (AIR 1959 SC 1217  ). There the facts were that the company had discharged a large number of workmen in April 1948 and the first order of reference was made in October 1952. The case of no less than 250 workmen was involved in the dispute and this Court observed that :"....if for any reason there had been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable timeIn the circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to a void dislocation of the industry......On this view the Court felt that the Appellate Tribunal should not have ordered the reinstatement of even the 15 workmen as their case was exactly the same as that of a large number of others. In our view what was said in the Shalimar Works case cannot be repeated in the case before us. The appellant pursues an industry with a large number of workmen and we cannot imagine any serious dislocation of work by the order of reinstatement of one workman. Normally it will be months before an order of reference is made by Government and one or two years elapse in almost all cases before the adjudication by an Industrial Tribunal is complete. If mere lapse of time be enough to lead the Industrial Tribunal to hold that there should be no reinstatement of service the power of reinstatement will become obsolete. In any case the Management must try to show that reinstatement will cause dislocation of work and the Tribunal must taken that into consideration. In this case we find no such compelling circumstances15. On the question as to whether compensation should have been awarded in lieu of reinstatement, we were referred to the case of Hindustan Steels. v. A. K. Roy, (1970) 1 Lab LJ 228 = (AIR 1970 SC 1401  ) where it was said that it was in the discretion of the tribunal to make an order of reinstatement or to award compensation in lieu thereof and it is only when the tribunal exercises its jurisdiction in disregard of the circumstances or the relevant principles laid down in regard thereto that this Court would interfere with its discretion. It has become almost a settled principle that reinstatement should not be awarded where the management justifiably alleges that they have ceased to have confidence in the dismissed employee. In other cases the Tribunal must consider carefully the circumstances of the case to come to a finding that justice and fairplay require that reinstatement should be awarded. In this case, there is no allegation that the Management had lost confidence in Kupuswamy. It is extremely doubtful whether the Manager would have ordered dismissal if Veeraraghavan had not drawn his attention to the past lapses of the respondent about which he was not allowed to have a say. We do not therefore feel that we must interfere with the award of reinstatement of the respondent.