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CASE NO.: Appeal (civil)  2619 of 2003

PETITIONER: Mangt.of Madurantakam Co-op.Sugar Mills Ltd.                                     

RESPONDENT: S.Viswanathan                                                    

DATE OF JUDGMENT: 22/02/2005

BENCH: N.Santosh Hegde & P.K.Balasubramanyan        

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

In this appeal the appellant is challenging an order made by  the Division Bench of the High Court of Judicature at Madras  which allowed a writ appeal filed by the respondent-workman (the  workman) reversing the order of the learned Single Judge of the  same court who in turn had set aside the award of reinstatement  made by the Labour Court. The respondent was working as a Clerk in the Divisional  Office of the appellant - Sugar Mills which had several godowns in  different places under the control of the said Divisional Office. The  appellant - Sugar Mills used to issue permit for supply of manure  in bags to cane growers. The workman used to attend to the  distribution of manure bags at two such godowns on different days  of the week. It is alleged that on 5.2.1976 while the workman was  attending to work in the godown at Sathancheri, he made an illegal  demand of additional sum of Rs.10/- purportedly as a donation for  a temple festival stating that the said collection was authorised by  the higher ups in the Management. The complainant - cane grower  had stated in his complaint that this is an illegal gratification which  the workman was collecting from the cane growers. He had also  alleged that the appellant had behaved in a rude manner with him  by using insulting words when he met him on that day. The  complainant further stated that the workman was given defective  manure bags and no opportunity was being given to the cane  growers to select their own bags. Based on the above complaint, a departmental enquiry was  instituted and the same was conducted by the Labour Welfare  Officer who on the basis of the evidence recorded by him found  the workman guilty of alleged misconduct and recommended his  dismissal. The disciplinary authority before passing the order based on  the enquiry report, re-appreciated the evidence recorded by the  enquiry officer and came to the conclusion that though the  misconduct is proved a punishment of dismissal was too harsh and  converted the same to one of discharge.    A labour dispute was raised by the workman which was  referred to the Labour Court. Before the said court one of the  contention of the workman was that the enquiry officer, namely,   Labour Welfare Officer was specifically debarred under the rules  applicable from conducting an enquiry. Therefore, the enquiry  against him was vitiated. The Management while admitting that the  said enquiry officer was disqualified from conducting the enquiry  contended that the material collected in the enquiry ipso facto  would not be vitiated even though the enquiry officer was an  unauthorised person and the disciplinary authority having  considered the entire material on record and in fact having reduced

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the punishment it is not open to the workman to plead that any  prejudice has been caused to him. On the facts of this case and for the reasons recorded herein  below, it may not be necessary for us to decide this issue, since  inspite of the fact that the enquiry officer was not an authorised  person, the workman himself had relied on certain portions of the  evidence recorded by the said enquiry officer before the Labour  Court for proving his innocence. Hence, we leave this question of  law open. Before the Labour Court, the Management had sought  permission to adduce further evidence to establish its charge  against the workman. The Labour Court permitted both the parties  to adduce additional evidence pursuant to which the Management  examined two witnesses while the workman examined himself in  support of their respective cases.  The Labour Court having perused the material on record  came to the conclusion that though the demand for donation might  have been made by the workman, the same was not as an illegal  gratification and since the complainant had not paid the amount  demanded, the workman had cancelled the receipt of such amount  which was done on the back of the permit issued by the  Management. It also came to the conclusion that the Management  has failed to prove that the workman had misbehaved with the  complainant and further held that the workman was justified in not  allowing the cane growers to enter the stores for choosing the  manure bags of their choice. On the basis of the said finding the  Labour Court set aside the punishment of discharge and directed  the Management to reinstate the workman with back wages and  other retiral benefits.  The aggrieved Management preferred a writ petition before  a learned Single Judge who on re-appreciation of the evidence  came to the conclusion that the Management has proved the  demand of illegal gratification in the guise of donation. Hence, it  set aside the award of the Labour Court upholding the order of  discharge made by the Management. As stated above, this order of the learned Single Judge came  to be reversed by the appellate bench of the High Court recording a  finding that there was no evidence to conclude that the amount  demanded was towards illegal gratification and not as a donation  for the temple festival. The Division Bench further came to the  conclusion that on the back of the permit a sum of Rs.10/- was  stuck off since the complainant did not pay that money and a figure  of Rs.4.95 was entered by the workman which was towards the  payment of cooly charges. Thus taking a different view on facts  from that of the learned Single Judge and agreeing with the finding  of the Labour Court, it allowed the appeal of the workman and  upheld the award by setting aside the order of the learned Single  Judge. This ding-dong battle on facts between the Management and  the workman has reached this Court by way of this appeal and  leave having been granted, it is for us now to decide which of the  four views is justifiable and is to be upheld. Is it the view of the  Management taken in the domestic enquiry ? Or is it the view of  the Labour Court ? Or is it the view of the learned Single Judge of  the High Court ? Or is it the view of the Division Bench of the  High Court ?     Normally, the Labour Court or the Industrial Tribunal, as  the  case may be, is the final court of facts in these type of  disputes, but if a finding of fact is perverse or if the same is not  based on legal evidence the High Court exercising a power either  under Article 226 or under Article 227 of the Constitution of India  can go into the question of fact decided by the Labour Court or the  Tribunal. But before going into such an exercise it is necessary that  the writ court must record reasons why it intends reconsidering a  finding of fact. In the absence of any such defect in the order of the

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Labour Court the writ court will not enter into the realm of factual  disputes and finding given thereon. A consideration of the  impugned order of the learned Single Judge shows that nowhere he  has come to the conclusion that the finding of the Labour Court is  either perverse or based on no evidence or based on evidence  which is not legally acceptable. Learned Single Judge proceeded as  if he was sitting in a court of appeal on facts and item after item of  evidence recorded in the domestic enquiry as well as before the  Labour Court was reconsidered and findings given by the Labour  Court were reversed. We find no justification for such an approach  by the learned Single Judge which only amounts to substitution of  his subjective satisfaction in the place of such satisfaction of the  Labour Court.   The Division Bench too in appeal, in our opinion, has  committed the same error. May be, there was some justification,  since if it had to allow the appeal, then it had to consider the points  on facts decided by the learned Single Judge. In that process it also  took up for consideration every bit of evidence that was considered  by the Labour Court as well as by the learned Single Judge and  disagreed with the finding of the learned Single Judge.  It is in this context that we are called upon to decide the  validity of the impugned order of the Division Bench of the High  Court. Shri R.Sundaravardan, learned senior counsel appearing for  the appellant contended that under Article 136 of the Constitution  it is open to this Court to correct the injustice that is done by the  impugned order. According to the learned counsel the Division  Bench was in error in coming to the conclusion that the  Management had not established the fact that the workman had   abused the complainant. He also submitted that the finding of the  Division Bench that money demanded was for donation to the  temple festival and not as a bribe was again contrary to records.  Therefore, he contended the Division Bench has erred in coming to  the wrong conclusion.  We note that the Labour Court has taken into consideration  the fact that the complainant had stated that on the day when he  went to meet the workman he was greeted with an abuse, but this  piece of evidence was not accepted by the Labour Court rightly  because it is rather difficult to accept that any normal person who  meets another person for the first time in his life would straight  away abuse him without any rhyme or reason. In this background,  we cannot conclude that the finding of the Labour Court on this  question is perverse. The other argument of the learned counsel for  the appellant is that there was evidence to show that the demand of  Rs.10/- was made as illegal gratification in the guise of donation   and that case ought to have been accepted. We must state that even  this question was considered by the Labour Court and was rejected  on the ground that the mere statement of the complainant in this  regard without there being any corroborative material was  insufficient to hold the workman guilty. Even this finding in our  opinion cannot be held to be perverse taking into consideration the  over all facts of the case. In regard to the third charge of not  allowing the complainant to enter the godown also, it cannot be  said that the finding of the Labour Court is perverse. In such a  background it is not possible for this court to accept the contention  of the Management that the Labour Court’s findings are  unsustainable in law. It may be possible for another person to take  a different view, but certainly it is not possible to give a finding  that the conclusion of the Labour Court was either perverse or not  based on evidence.  This takes us to the consideration of the next argument of  the learned senior counsel for the appellant who submitted that the  direction of the tribunal granting full back wages is highly onerous,  in the background of the fact that the appellant-Management is in a  state of financial crises. He submitted that there is material to show

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that the respondent-workman during his period of non employment  with the appellant-Management was gainfully employed  elsewhere. Therefore, now that the respondent-workman is entitled  to his gratuity and other retiral benefits, the direction to pay the full  back wages may be modified.  Ms.Hetu Arora, learned counsel appearing for the  respondent-workman strongly opposed this prayer of the appellant  and contended that the case is going on since 1976 and the  workman had to spend considerable amount of money on the  litigation solely because of the attitude of the Management. She  also submitted that the statement of the learned senior counsel for  the appellant that the workman was gainfully employed is not  substantiated by any material on record, hence the said prayer  should be rejected. We have anxiously considered the argument addressed by  both sides in regard to the quantum of back wages to be paid to the  workman. It is an undisputed fact that the workman had since  attained the age of superannuation and the question of  reinstatement does not arise. Because of  the award, the  respondent-workman will be entitled to his retiral benefits like  gratuity etc. and accepting the statement of the learned senior  counsel for the appellant-Mills that it is undergoing a financial  crises, on the facts of this case we think it appropriate that the full  back wages granted by the Labour Court be reduced to 50% of the  back wages. In addition the respondent-workman will also be  entitled to all other retiral benefits as if he was in service  throughout the period when his services were discharged. The decision under appeal is confirmed subject to the above  modification.  Ordered accordingly.