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Judgment
B. Rajendran, J.—The Petitioner/Management, a Rubber Estate represented by its General Manager has filed this Writ Petition challenging
the common award passed in I.D. Nos. 638/1992, 642/1992 and 644/1992 dated 27.1.2003 by the Presiding Officer of the Labour Court,
Tirunelveli.
The contention of the petitioner is that it is a Rubber Estate situated in Kalial village in Kanayakumari District. In this Estate, there were 70
workmen viz., 45 tappers and 25 General Workers (Field Workmen) and the respondents 2 to 4 were working as tappers in the petitioner''s
estate. Respondent Nos. 2 and 3 along with some others were placed under suspension by order dated 14.4.1990 for refusing to do loading
work. As they were suspended employees, they were prohibited from entering into the Estate. However, on 18.4.1990, at about 8.30 a.m., they
unauthorisedly came into the Estate and wrongfully confined (gheraoed) the Administrative Officer, the Assistant Superintendent of the Estate and
the Jeep Driver of the Administrative Officer on the road in front of the Estate Factory situated in the Peramalai Division of the Estate. They did not
allow the Administrative Officer and others to move away from the place. At about 9 a.m., three tappers namely, E.Nelson, P. Johnson (4th
respondent) and R. Selvaraj also joined the gherao stopping their work and leaving their work place in the Estate. Later on, police was informed
and the police came there and asked the workers indulged in gherao to get dispersed. The workers even refused to give some drinking water for
the Administrative Officer who was wrongfully confined and only after 2.00 p.m., after much persuasion, gherao was lifted and the Administrative
Officer was released. All the workmen who had indulged in gehrao were given charge memo (show-cause notice) dated 24.4.1990. As per the
said notice, the three tappers viz., E. Nelson, P. Johnson (4th respondent) and R. Selvaraj were also placed under suspension. The workmen to
whom show cause notices were sent refused to accept the notice except C.A. Chellayyan. The notices were returned as ""refused"". The fourth
respondent who had refused to receive the show cause notice dated 26.4.1990 had committed other misconduct also. On 21.4.1990 at about
6.45 a.m., when Sri Krishna Nair one of the staff member of the petitioner was proceeding to Pannimala Division, P.Johnson, the fourth
respondent abused him by filthy language in Malayalam and pushed him away and thereby prevented him from going to the work. For this, a
separate charge sheet was also given on 26.4.1990. He further committed another serious misconduct. On 7.5.1990 at about 5.15 am., he along
with other workmen closed the main gate and small gate of the Estate Factory situated in Peramalai Division and thereby caused obstruction for
other works to go for work. He has even threatened another employee with dire consequences including the threat of physical assault. For this, a
separate charge sheet was given on 4.6.1990. The third respondent also indulged in the commission of offence and he was also issued charge
memo dated 14.6.1990. Fifteen workmen including the eight workmen who wrongfully confined the Administrative Officer on 18.4.1990 and
prevented tapping and field work from being performed for a number of days, were given charges, an enquiry was conducted and after enquiry,
they were dismissed from service. The charges levelled against them were found proved in a properly conducted enquiry. The management was
able to identify seven workmen who did not participate in the enquiry but participated in the prevention of work. They are (i) C. Johnson, (ii) N.
Baby, (iii) Jainy, (iv) Echooty), (v) Sarojini, (vi) Devaky and (vii) Kamalabi.
All those 15 workers were dismissed from service after giving reasonable opportunities to defend their case pursuant to the findings of the
enquiry officer. Seven employees who did not participate in the serious charge of gherao and wrongful confinement of the Administrative Officer of
the Management but charged for participating only in preventing the workmen, submitted a written apology for the misconduct committed by them,
through their union. There was a Bi-partite Settlement dated 7.5.1991 with the office bearer of Kumari Mavatta Thotta Thozhilalar Sangam who
also represented the respondents before the Conciliation authorities. As per the term of settlement, the said seven persons who had tendered
unconditional apology were reinstated in service and as per the settlement, the period between the dismissal and the reinstatement was treated as
Leave on Loss of Pay and no backwages was paid but they were reinstated. The management also produced a copy of the settlement entered into
between the management and the labour union. In that settlement, it was also made clear in Term No. 2 that reinstatement of the said employees
was considered as a special case on their giving apology letter and in view of the same, punishment of dismissal was modified treating it as absent
on loss of pay from the date of dismissal to the date of reinstatement. Term No. 2 of the Settlement is extracted hereunder for reference.
It is mutually agreed that the following workmen namely (1) N.Baby, (2) C. Johnson, (3) Jainy, (4) Echoothy, (5) Sarojini, (6) Devaky, (7)
Kamalabai who were found guilty of the charges levelled against them, after a duly held domestic enquiry and who were dismissed from service
will, as a special case, be reinstated in service on their giving an apology letter and that, by way of token punishment, the period from the date of
dismissal to the date of reinstatement as per this clause will be treated as absence from work on loss of pay.
It is the contention of the learned Counsel for the petitioner that inspite of the specific understanding and agreement between the management
and the union, till date, the respondent Nos. 2 to 4 never offered or tendered any apology but instead, they had challenged the matter before the
Labour Court and a common award was passed. It is the further contention of the learned Counsel for the petitioner that the Labour Court did not
take into consideration the seriousness of the offence committed by the respondents 2 to 4 but it only took into consideration the subsequent event
viz, settlement arrived at between the management and the union insofar as it relates to the tendering apology of seven persons and reinstatement
thereon. Further, the Labour court has given a finding that though the enquiry was correct, subsequent event proved that there was discrimination in
the punishment given to the respondents 2 to 4 herein and hence, it ordered for reinstatement of the respondents 2 to 4 with backwages, which is
under challenge in this Writ Petition.
Respondent 2 to 4 are represented by Advocates. As far as the 2nd respondent is concerned, the Advocate and the Management has fairly
submitted that subsequently, in view of the fact that the 2nd respondent has already superannuated and also entered into a compromise arrived at
settlement and in view of the settlement, gratuity amount alone was received in full quit of all the claims. Therefore, insofar as the second
respondent, the matter has been settled and he quit all the claims. In fact, in the letter given to the management dated 15.2.2007, the second
respondent has categorically stated that he is not interested in contesting the case. The translated copy of the letter written by the second
respondent was produced before the Court. The management has also produced receipt given by the second respondent dated 1.3.2007 for full
payment of the gratuity amount. Hence, insofar as the second respondent is concerned, the matter has been settled. The letter of the 2nd
respondent forms part of the records.
The third and fourth respondents contested the case on merits and the Advocate representing the third and fourth respondent also fairly
submitted that insofar as the third respondent is concerned, though the third respondent has already superannuated, the learned Advocate is
arguing the case in respect of the benefits what the third respondent could have got had the third respondent was reinstated.
The only contention made by the learned Counsel for the third and fourth respondents was that there was a categorical discrimination as against
the respondent Nos. 3 and 4 when compared to other seven workers who have been reinstated. Hence, he is contesting the case on merits and the
order passed by the Labour court was correct on the ground of discrimination meted out to respondents 3 and 4 and so substantiated their case.
Heard all the parties concerned.
The short question which is to be decided in this Writ Petition is whether the settlement arrived at between the management and the dismissed
employees subsequent to the order of dismissal by virtue of tendering of apology letter and their reinstatement vis-a-vis the persons who have not
tendered apology letter could be called as discrimination in respect of imposition of punishment insofar as it relates to non-reinstatement.
Learned Counsel for the petitioner vehemently argued that it is a case where the differences between the respondents 2 to 4 and the persons
who have been reinstated can never be called as discrimination for the following reasons:
(i) Action was taken against all the 15 employees and dismissal order was passed against all of them originally. It is later on pursuant to the
initiation of the union, a compromise was arrived at and seven of them gave a letter tendering unconditional apology when they represented through
their union. The management agreed to reinstate them based on their unconditional apology, of course, without backwages for the interregnum
period i.e. from the date of dismissal till the date of reinstatement, which are treated as absent and loss of pay.
(ii) Insofar as the respondents 2 to 4 are concerned, even though there was a specific clause viz., ""clause No. 3"" in the settlement arrived at
between the management and the union giving a period of six months for bipartite discussion with a view to find an amicable settlement, the
respondents 3 and 4 never came forward for the discussion nor tendered apology or approached their union for such an amicable settlement.
Clause No. 3 of the Settlement arrived on 7.5.1991 is extracted hereunder for reference:
It is agreed by and between the parties that the demand of the Union for reinstatement of 1.Augustine (2) P.Johnson (3) E.Nelson (4) E.
Selvaraj (5) C.A. Chelliar (6) Y. Chellaian (7) A. Rajappan (8) Sanalkumar, who were found guilty of charges levelled against them in two
separate domestic enquires duly held, and who were dismissed from service of the management, will be again taken up for bipartite discussion with
a view to find an amicable settlement within a period of 6 months.
In support of his contention, the learned Counsel for the petitioner clearly argued that pursuant to the decision of the Supreme Court, it cannot
be stated that there is discrimination or differentiation between persons who have tendered apology and persons who have not tendered apology
as they do not stand on the same footing. Seven persons were taken back in the service without backwages based on their apology and apart from
that the charges levelled against them were not so grave as they did not assault or gheraoed the Administrative Officer of the Management or they
did not prohibit any officers of the Management but they only obstructed certain people from doing work and so they have not done heinous crime.
Thus, the people who were reinstated were only who committed offence of less gravity and hence, they have been allowed to be reinstated.
However, respondents 3 and 4 herein originally participated in gheraoing and obstructing the personnels of the management and workers from
doing their work and especially the fourth respondent has not only at one occasion but on very many occasion acted so. Both third and fourth
respondents took law into their hands and troubled the management. Apart from that, they never chose to tender apology to the management
instead they contested the punishment awarded to them.
For this proposition, the learned Counsel relied on the following judgments reported in 2004 III CLR 755 [Management of Krishnakali Tea
Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr.], where Hon''ble Three Judges Bench of the Hon''ble Supreme Court has categorically
held that gheraoing and wrongfully confining the Manager are all sufficient to come to the conclusion that the concerned workmen have indulged in
misconduct. Their Lordships have further held in paragraph No. 30 that inspite of settlement with some other workmen who are found guilty of
charges would not in any manner, reduce the gravity of the misconduct in regard to the workmen concerned. Paragraph No. 30 of the said
judgment is extracted hereunder for reference.
This leaves us to consider whether the punishment of dismissal awarded to the concerned workmen de hors the allegation of extortion is
disproportionate to the misconduct proved against them. From the evidence proved, we find the concerned workmen entered the estate armed
with deadly weapons with a view to gherao the manager and others in that process they caused damage to the property of the estate and
wrongfully confined the manager and others from 8.30 p.m., on 12th of October to 3 a.m., on the next day. These charges, in our opinion, are
grave enough to attract the punishment of dismissal even without the aid of the allegation of extortion. The fact that the management entered into
settlement with some of the workmen who were also found guilty of the charge would not, in any manner, reduce the gravity of the misconduct in
regard to the workmen concerned in this appeal because these workmen did not agree with the settlement which others are agreed instead chose
to question the punishment.
In the present case, the respondents 3 and 4 did not agree to the settlement which other workers agreed to but instead, chose to question the
punishment.
The learned Counsel also relied on the judgment reported in 2005 III CLR 569 (Obettee Pvt. Ltd. v. Mohd. Shafiq Khan), where the Hon''ble
Supreme Court in identical matter held that workers who have given apology and the workers who have not given apology can not be stated to be
on the same footing and same yardstick cannot be applied. In paragraph Nos. 8 and 9, the Hon''ble Supreme Court has held as follows:
On consideration of the rival stand one thing becomes clear that Chunnu and Vakil stood at different footing so far as the Respondent-workmen
is concerned. He had unlike the other two, continued to justify his action. That was clearly distinctive feature, which the High Court unfortunately
failed to properly appreciate. The employer accepted to choose the unqualified apology given and regrets expressed by Chunnu and Vakil. It
cannot be said that the employer had discriminated so far as the Respondent-workman is concerned, because as noted above he had tried to
justify his action for which departmental proceedings were initiated. It is not that Chunnu and Vakil were totally exonerated. On the contrary, letter
of warning dated 11.4.1984 was issued to them.
In Union of India v. Parma Nanda 1989 II CLR 1 SC the Administrative Tribunal had modified the punishment on the ground that two others
persons were let out with minor punishment. This Court held that when all the persons did not stand on the same footing, same yardstick cannot be
applied. Similar is the position in the present case. Therefore, the High Court''s order is clearly unsustainable and is set aside.
In the above decisions, the Hon''ble Supreme Court has categorically held that when there are two sets of workers especially one who has
accepted, agreed and also tendered apology would definitely be treated in a different way and merely because good treatment is given for
tendering apology that would not by itself make the punishment given to others as discriminatory.
Apart from this, the learned Counsel brought to the notice of this Court the judgment of a Division Bench consisting of Justice Sri Markandey
Katju (the Hon''ble Chief Justice as he then was) and Justice Smt. Prabha Sridevan of this Court reported in 2005 (2) L.L.N.512 [Between
Management of T.I. Diamond Chain Ltd., Chennai and (1) P.L. Ramanathan (2) Presiding Officer, I Additional Labour Court, Chennai wherein it
has been held in paragraph No. 5 as follows:
... employees Dhanuskodi, Kandasami and Shanmugam have tendered apology and hence they were given minor punishment whereas the
respondent workman did not tender apology. Hence, the cases are distinguishable. In the facts and circumstances, we are of the opinion that the
Labour Court was not justified in directing the reinstatement of the respondent-workman with fifty per cent backwages. We, therefore, modify the
award of the Labour court and the impugned order of the learned single Judge and direct that the respondent workman shall stand dismissed from
the date of dismissal order passed by the appellant-management.
In the said case, their Lordship have held that employees Dhanuskodi, Kandasami and Shanmugam have tendered apology and hence they
were given minor punishment whereas the respondent workman did not tender apology. Hence, the cases are distinguishable. and that the Labour
Court was not justified in directing the reinstatement of the respondent-workman with fifty per cent backwages. Therefore, Their Lordships
modified the award of the Labour court and directed that the respondent workman shall stand dismissed from the date of dismissal order passed
by the appellant-management.
In the present case, the respondents 3 and 4 neither tendered apology nor approached the Management for settlement. The workers who
tendered apology were reinstated considering the gravity of charges levelled against them were less. Therefore, the cases are distinguishable. The
facts of the above case is in pari-materia to the case in hand and the Judgments squarely applies to the present case.
Per contra, the learned Counsel appearing for the respondents 3 and 4 would contend that there is distinctive features in respect of treatment
meted out to the respondents 3 and 4 and that seven persons who have been reinstated.
The learned Counsel relied on the judgment of this Court reported in 2007 W L.R. 52 [N. Nandagopalan v. The Secrtary to Government] and
2007 W L.R. 632 [The Managment of LUK India Private Ltd. v. The Presiding Officer, Labour Court, Salem and 2 Ors.] for the proposition that
if employees were involved in the same incident, the Department should proceed against all or should not proceed against any one. There is no
discretion to proceed against some of employees and no action taken against other employees, when they are identically placed, and their
involvement being identical.
Both the decisions are clearly distinguishable insofar as the present case is concerned. It is not the case of the respondents 3 and 4 that there
was no action taken against other persons whereas admittedly, dismissal order was passed against all the 15 employees. It was only subsequent to
punishment granted, the compromise was arrived at, at the instigation of union and others and the union further stated that the same would be
extended to the respondents also since they did not proceed further or even tendered apology till date. Hence, the judgments relied on by the
learned Counsel for the respondents 3 and 4 will not be applicable to the facts of the present case.
However, the judgment of the Division Bench of this Court reported in 2005 (2) L.L.N.512 cited supra is in pari-materia with the facts of the
case on hand and is squarely applicable to the present case. This Court is bound by the decision of the Division Bench of this Court and the
decision of the Hon''ble Supreme Court.
Therefore, without any hesitation, the award of the Labour Court insofar as it relates to respondent Nos. 3 and 4 is set aside and reinstatement
granted by the Labour Court in respect of respondent Nos. 3 and 4 is set aside and the dismissal order of the Management is confirmed insofar as
respondents 3 and 4 are concerned. As far as the 2nd respondent is concerned, the matter is settled between the parties and the same is recorded.
In the result, the Writ Petition is allowed. Connected W.P.M.P.(MD)No.2554 of 2005 is closed. No costs.