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CASE NO.: Appeal (civil)  892 of 2007

PETITIONER: U.B. Gadhe & Ors. etc.etc

RESPONDENT: G.M., Gujarat Ambuja Cement Pvt. Ltd

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 892 OF 2007

Dr. ARIJIT PASAYAT, J.   1.      Appellants call in question the judgment rendered by a  learned Single Judge of the Gujarat High Court allowing the  Special Civil Applications filed by the respondent (hereinafter  referred to as the ’employer’).   2.      The respondent had filed the applications questioning  correctness of the award dated 31.12.2004 passed by the  Labour Court. Another set of petitions were filed by the  employer questioning correctness of the said award by which  the Labour Court had partially allowed the reference of the  concerned workmen. By the said award the workmen were  directed to be re-instated in service with continuity but  without back wages.     Challenge of the workmen was to the  award insofar as it provided for no back wages and only re- instatement.   3.      Background facts in a nutshell are as follows:  

Respondent is involved in providing public utility  services. In the year 1989-1990, there were certain disputes  between the management and the employees. There was an  extended strike in which a large number of employees  employed by the respondent-company participated. This  disrupted the working of the plant where the concerned  workmen were employed. The respondent-company, therefore,  initiated disciplinary action against the striking employees.  Against the workmen concerned, charge sheet came to be  issued. Since the workmen did not participate they were  proceeded ex-parte. Eventually, eight workmen were dismissed  from the service by the respondent-company by order dated  01.03.1990. The concerned workmen, therefore, raised  industrial disputes challenging their dismissal orders.

       Earlier once the references were disposed of by the  Labour Court by an award dated 23.04.1999. The workmen  concerned were directed to be reinstated in service with full  back-wages from the date of dismissal till reinstatement. The  employer challenged the award of the Labour Court by filing  Special Civil Application No.6055/1999. The learned Single  Judge disposed of the application on 14.5.2004 by giving  certain directions, and the proceedings were remanded back to

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the Labour Court. These directions read as follows:

"11. For the reason stated above, it is  necessary to quash and set aside the  impugned judgment and awards while giving  the following directions:-

I. The proceedings of aforesaid Reference Cases  are remanded back to the Labour Court for re- trial.

II. When the proceedings of the aforesaid cases  are remanded back to the Labour Court, the  petitioner will be at liberty to lead additional  evidence to substantiate its action taken  against the respondents.

III. The respondents will be at liberty to lead  evidence contra.

IV. The material already adduced before the  Labour Court including the oral evidence led  on behalf of the respondents will remain as it  is.

V. The Labour Court to complete the hearing  and final declaration of the judgment and  awards on or before 30th September, 2004.

VI. That parties to the aforesaid Reference  cases will fully cooperate the Labour Court  with the hearing of the cases and no  adjournment will be sought without compelling  reasons. The common judgment and award  passed in Reference L.C.A. Nos. 139/1998,  146/1998, 162/1998, 145/1998 and  150/1998 dated 23rd April, 1999 are hereby  ordered to be quashed and set aside. The  petitions are allowed. Rule made absolute with  no order as to costs".

4.     After remand, the Labour Court took up the proceedings  afresh, recorded the evidence and passed the awards on  31.12.2004.

5.      Before recording the observations and conclusions of the  Labour Court in the impugned award, it would be useful to  notice the allegations made against the concerned workmen by  the employer.

6.      Charges against all the workmen were identical. Twelve  different charges were leveled against them. By way of  illustration the High Court took the case of appellant No.1.  The charges read as follows:

"(1) Use of impertinent languages, insult to  superiors, indecent behaviour, insubordination  and any act which is subversive of discipline.

(2) Unlawful cessation of work or going on  illegal strike in contravention of the provisions  of law and the standing orders and  participation in a sit down strike.

(3) Inciting and/or instigating other employees

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to take part in an illegal strike, sit down strike  and action in furtherance of such strike  launched in contravention of the provision of  law.

(4) Disorderly behaviour and conduct  endangering the life or safety of any person  within the factory premises.

(5) Act of sabotage of causing damage to the  work in progress or to any property of the  management wilfully.

(6) Wilful interference with the work of another  workman or of a person authorised by the  management to work on its premises.

(7) Holding or participating in the meetings,  demonstrations and shouting of slogans inside  the factory premises or mines or residential  colony.

(8) Unauthorised absence from duty for more  than eight consecutive days.     

(9) Committing a nuisance in the premises of  the factory, breach of these standing orders.

(10) Canvassing for trade union membership  and collection of union funds within the  premises except as permissible under law.          (11) Making a false, vicious or malicious  statement in public against  management/factory or officer.

(12) Instigation, incitement, abetment or  furtherance of any of the above acts.

7.      Out of the said charges, charge Nos. 2, 4, 7, 8, 9 and 11  were held to have been proved while charge No.1 was held to  be partially proved. Other charges were not proved.   

8.      The question relating to legality of the departmental  proceedings was examined first. The Labour Court held that  the enquiry conducted was legal and proper, but the Labour  Court found that some of the charges were not proved. It was  held that so far as the strike is concerned it was established  that the workmen were not justified in going on strike. It was  noted that undisputedly the concerned workmen had  participated in a strike. Accordingly, the Labour Court had  held that denial of back wages for a period of 14 to 15 years  for which the concerned workmen remained out of  employment would be sufficient punishment for the  misconduct proved against them. The High Court held that  once the charges have been proved, the Labour Court ought  not to have interfered with the quantum of punishment.  Accordingly, the employer’s Special Civil Applications were  allowed and those filed by the workmen were dismissed.  It  was concluded inter alia as follows:

"7.3    The above observations were made with  regard to the scope of jurisdiction of the High  Court under Article 226 of the Constitution of  India, same would however, apply also to the

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powers of the Labour Court or Industrial  Tribunal while examining the conclusions  arrived at by the employer during the course of  departmental inquiry.

7.5     I do not find that Labour Court  considered the evidence on record to come to  the above conclusions. The power of the  Labour Court to interfere with the findings  arrived at by the employer are extremely  narrow. If there is some evidence on record to  permit the employee to draw such conclusions,  it is not for the Labour Court to decide the  sufficiency of such evidence and unless the  conclusions are based on no evidence and,  therefore, perverse, Labour Court could not  have interfered with the same.  

7.7.    The Labour Court also proceeded to  consider the question of quantum of  punishment on the basis that the charge of  going on illegal strike was proved against the  workmen. The Labour Court ultimately found  that for the proved misconduct, punishment of  withholding of the back wages for a period of  14 to 15 years would be sufficient punishment.  The Labour Court found that order of  dismissal cannot be sustained."  

9.      It was concluded that since the Labour Court had held  that the workmen had proceeded on illegal strike and they  were leading participants in such a strike, the Labour Court  ought not to have interfered with the quantum of punishment,  specially when it was established that the employer is a public  utility service and the strike prolonged for a period of five  months.  

10.     The stand of learned counsel for the workmen was that  before the Conciliation Officer the employer had agreed to re- instate the workmen and to take a sympathetic view.  

11.     The main plank of the appellants’ arguments was that   the parameters of Section 11-A of the Act had not been  considered by the High Court.  

12.     After the amendment of Section 11-A, the Labour Court  or the Tribunal, as the case may be, had ample power to  decide the question relating to quantum of punishment.  Decisions relied upon by the High Court either related to a  stage where amendment to Section 11-A was not there or  under Article 226 of the Constitution of India, 1950 (in short  the ’Constitution’). The situation is different in cases in which  Section 11-A of the Act can apply.  

13.     Learned counsel for the respondent submitted that the  primary stand of the respondent before the High Court was  alleged agreement to consider the cases sympathetically. That  aspect was considered by the High Court in proper  perspective, considering the fact that after the arrangement  was agreed to, the employer appointed a Committee to  examine the matter that no sympathy was required to be  shown. The High Court’s approach is clearly correct in view of  the serious nature of the allegations against the appellants.  

14.     When the Labour Court found that the workmen had

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proceeded on illegal strike and that they were leading  participants in such a strike, the Labour Court ought not to  have interfered with the quantum of punishment especially  when it was established that the employer is a Public Utility  service and that the strike prolonged for a period of four to five  months. Even in the absence of any further proof of  involvement of the workmen for other misconduct of unruly  behaviour, abusing superiors officers, preventing officers from  entering the premises, preventing co-workers from resuming  duties and threatening the family members of the workmen  and collecting union subscription illegally, it is doubtful  whether the Labour Court   could        have    reduced     the  punishment and substituted the order of dismissal of lesser  punishment. As noted earlier, this Court in Mill Manager,  Model Mills Nagpur Ltd. v. Dharam Das, Etc. (AIR 1958 SC  311) had upheld the action of the employer in dismissing the  employees who were found to have gone on illegal strike.  

15.     We are unable to accept the contention of the learned  counsel for the workmen that before the Conciliation Officer,  the  employer had agreed to reinstate the workmen concerned  as also the contention that having agreed to take a  sympathetic review of the situation, the employer failed to do  so and that therefore, the order is rendered illegal.

16.     In the agreement, the  following terms were provided:

"(1) The case of eight disputed workmen will be  reviewed sympathetically within a period of  one month.

(2) The workmen will give undertaking as  decided.

(3) The management has proposed the  principle of "No work no pay" as against which  the demand has been raised by the union  which will be decided jointly by Shri  Sureshbhai and Managing Director.

(4)     If the company finds that the workman  has committed any misconduct or has done  something wrong after taking him in service it  will be open for the management to take steps  in accordance with law. "

17.     The High Court, as noted above, has not considered the  case in the background of Section 11-A of the Act. Under  Section 11-A, wide discretion has been vested in the Tribunal  in the matter of awarding relief according to the circumstances  of the case, whereas in the writ jurisdiction it is extremely  limited.  

18.     It is not necessary to go into in detail regarding the power  exercisable under Section 11-A of the Act.  The power under  said Section 11-A has to be exercised judiciously and the  Industrial Tribunal or the Labour Court, as the case may be, is  expected to interfere with the decision of a management under  Section 11-A of the Act only when it is satisfied that  punishment imposed by the management is wholly and  shockingly disproportionate to the degree of guilt of the  workman concerned.  To support its conclusion, the Industrial  Tribunal or the Labour Court, as the case may be, has to give  reasons in support of its decision. The power has to be  exercised judiciously and mere use of the words

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’disproportionate’ or ’grossly disproportionate’ by itself will not  be sufficient.

19.     In recent times, there is an increasing evidence of this,  perhaps well-meant but wholly unsustainable, tendency  towards a denudation of the legitimacy of judicial reasoning  and process.  The reliefs granted by the Courts must be seen  to be logical and tenable within the framework of the law and  should not incur and justify the criticism that the jurisdiction  of the Courts tends to degenerate into misplaced sympathy,  generosity and private benevolence.  It is essential to maintain  the integrity of legal reasoning and the legitimacy of the  conclusions.  They must emanate logically from the legal  findings and the judicial results must be seen to be principled  and supportable on those findings.  Expansive judicial mood of  mistaken and misplaced compassion at the expense of the  legitimacy of the process will eventually lead to mutually  irreconcilable situations and denude the judicial process of its  dignity, authority, predictability and respectability. [See:  Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr.  [1994 (1) SCALE 631)].

20.     Though under Section 11-A, the Tribunal has the power  to reduce the quantum of punishment, it has to be done  within the parameters of law. Possession of power is itself not  sufficient; it has to be exercised in accordance with law.

21.     These aspects were highlighted in Life Insurance  Corporation of India v. R. Dhandapani (AIR 2006 SC 615).    22.     Power and discretion conferred under the Section  needless to say have to be exercised judicially and judiciously.   The Court exercising such power and finding the misconduct  to have been proved has to first advert to the question of  necessity or desirability to interfere with the punishment  imposed and if the employer does not justify the same on the  circumstances, thereafter to consider the relief that can be  granted. There must be compelling reason to vary the  punishment and it should not be done in a casual manner.

23.    We would have asked the High Court to consider that  aspect. But considering the long passage of time, it would not  be proper to do so since the employer seems to be a public  utility service and the workmens’ continued utility to the  employer is gravely doubtful in view of their conduct. After  such a long period, it would not be in the interest of parties to  direct the High Court to consider parameters of Section 11-A  of the Act. Therefore, we have considered the matter, taking  into account the background facts.  The proved misconduct is  definitely serious.  The respondent has, as a matter of good  gesture, offered to pay each of the appellant rupees one lakh,  in view of the fact that they have received payment upto  December, 2004.

24.     Taking into account all relevant aspects, the offer of  respondent appears to be fair and reasonable. Let the payment  be made within eight weeks from today.         

25.     The appeal is disposed of accordingly with no order as to  costs.