AI Structured Summary
Not yet generated for this judgment
Judgment
R. Banumathi, J.—This Intra-Court appeal is preferred against the order dated 16.03.2012 in W.P.(MD) No. 3362 of 2008, whereby
learned judge directed the Management to pay a lumpsum compensation of Rs. 2,00,000/- in lieu of reinstatement and back wages and further
directed the Management to credit the Provident Fund arrears to the Department for the aforesaid period. The appellant establishment is a
Company incorporated under the Indian Companies Act and is manufacturing needles of all varieties in its factory at Ketti in the District of Nilgiris.
It is having regional office and sales centres throughout the country. Respondent/ workman was appointed as Junior Clerk on probation by the
appointment order dated 29.4.1971 and was confirmed as Junior Clerk by an order dated 2.5.1972 and subsequently he was promoted as Senior
Clerk. In May, 1996, it was decided to upgrade the Sales Office at Madurai and the 1st respondent, being a Senior Clerk, was transferred to
Madurai to work in the Madurai Sales Office.
Although the 1st respondent accepted the transfer he did not join at Madurai as stipulated in the transfer order. He applied for leave and the 1st
respondent has not joined duty in Madurai. After submitting a leave letter, 1st respondent alleged vindictive attitude against him by Director and
sales Manager. By letter dated 19.6.1996, the General Sales Manager directed the 1st respondent that he should report for duty at Madurai.
Inspite of such notice, the 1st respondent had not joined till date.
Appellant came to know that while in service 1st respondent had taken the contract from the Government of Tamil Nadu for collecting toll
money. In view of the continued absence of 1st respondent at Madurai from 10.6.1996, as well as the undertaking of employment by collecting
toll, a charge memo dated 13.11.1996 was issued to the 1st respondent. Charges levelled against him were
(a) absent from 10.6.96 to 29.10.96;
(b) undertaking employment elsewhere while in service without the permission of the management. That is, he had applied for and was granted by
the Collector of the District of The Nilgiris the right to collect tolls for the year 1996-97 in respect of Burliar in Coonoor Taluk and Kunjapanai in
Kotagiri toll stations."" Enquiry commenced on 18.11.1996 in which 1st respondent participated and he requested fifteen days time to submit his
explanation. The 1st respondent submitted his explanation on 2.12.1996 and wanted to bring an outsider as an observer of his side.
Management''s representative produced the documents to prove the charges and no oral evidence was let in by the Management. The 1st
respondent submitted his written arguments and final orders was not passed and kept pending.
Yet another charge memo was issued to the 1st respondent. The 1st respondent applied for leave on medical grounds from 4.1.1997 to
31.3.1997 on medical grounds. He has submitted leave application along with medical certificate dated 1.1.1997 issued by Dr. S.P. Suresh,
Medical Practitioner, Madurai, wherein, it was stated that 1st respondent was suffering from Viral Hepatitis. While considering the said leave
application on medical grounds, it came to the notice of Management that the 1st respondent was engaged in attending the wedding arrangements
of his nephew''s marriage in his native village between 6.1.1997 and 28.1.1997 and that the 1st Respondent attended the wedding of Ramkumar''s
son at Madras on 31.1.1997. It also came to the notice of Management that the 1st respondent had taken the right to collect the tolls for the year
1996-97 in respect of Burliar and Kunjappanni toll stations. In the charge sheet, it was alleged that the 1st respondent was attending the work
relating to his contract work of collection of tolls at Burliar and Kunjappanai toll stations. Charge sheet (dated 1.2.1997) was issued to the 1st
respondent. The 1st Respondent sent his explanation, wherein he clearly admitted attending wedding arrangements of his brother''s son and also
going to Madras to attend the wedding of Ramkumar''s son. Appellant - Management ordered for domestic enquiry and the Enquiry Officer was
appointed. After enquiry, the Enquiry Officer submitted his report finding the 1st respondent is guilty of misconduct committed by him. Second
show cause notice (dated 16.5.1997) was issued and the 1st respondent did not submit his explanation to the second show cause notice. Having
found that no explanation was forthcoming from the 1st Respondent, appellant - Management passed an order of dismissal on 4.6.1997 and the
same was sent to the 1st respondent.
Aggrieved by the order of dismissal, 1st respondent raised an Industrial Dispute before the 2nd respondent - Labour Court in I.D. No. 92 of
2000. In the Labour Court, issue regarding validity of enquiry was tried as a preliminary issue. The Labour Court by its award dated 23.3.2006
held that the enquiry conducted against the 1st Respondent was fair and proper and that the principles of natural justice was not violated. The 1st
respondent filed Writ Petition before the Court in W.P.(MD) No. 5122 of 2006 challenging the preliminary award. By order dated 11.10.2006,
the Court dismissed the writ petition stating that it can be challenged only after final award was passed.
Thereafter, the Labour Court heard the matter and passed the award on 19.3.2008. The Labour Court held that the 1st respondent/ workman
absented himself only because of his illness after giving the leave letter with proper medical certificate. Labour Court further held that there was
nothing wrong in going to the relative''s marriage and merely because the 1st respondent went to marriage it cannot be held that he was keeping
good health and on those findings Labour Court held that the dismissal of the 1st respondent/ workman was not justified. However, pointing out
that the 1st respondent had reached the age of superannuation on 9.1.2006 Labour Court held that it was not possible to order reinstatement and
therefore directed payment of 25% of back wages from the date the 1st Respondent was out of employment till the date of his superannuation i.e.,
9.1.2006.
Challenging the award, Management filed the Writ Petition -W.P.(MD) No. 3362 of 2008. Upon consideration of the rival contentions, the
learned judge modified the award and directed the Management to pay Rs. 2,00,000/- towards back wages in lieu of reinstatement and arrears of
salary. Learned judge further directed appellant Management to credit the provident fund arrears to the Department for the aforesaid period.
Challenging the above directions, Mr. Sanjay Mohan, learned counsel for Management contended that when no challenge was made to the
award by the workman, the Court could have either dismissed or allowed the petition, but could not modify the award except if the Management
gave consent to such modification. It was further submitted that in the present case no such consent was given by the Management and while so the
learned judge was not justified in modifying the award and giving more benefits to the workman in the writ petition filed by the Management.
According to the appellant/Management, at the time of dismissal of the 1st respondent on 4.6.1997, last drawn salary was Rs. 3,600/- per
month. Taking Rs. 3,600/- as wages, the total amount for nine years of service would come to only Rs. 3,88,800/- (Rs. 3,600 x 12 x 9). As per
the award of the Labour Court, out of the said amount, 25% of wages payable to the 1st respondent/workman is Rs. 97,200/- . In the grounds of
appeal, the Management had given the grand total amount payable at Rs. 5,60,568.34. 25% of it is Rs. 1,40,142.08. Going by any calculation, as
per the award of the Labour Court, 25% of the back wages payable to the 1st respondent/workman is calculated at less than Rs. 2,00,000/- . In
the absence of any challenge to the award by the workman, the learned judge was not right in modifying the award by directing the Management (i)
to pay Rs. 2,00,000/- as compensation in lieu of back wages and arrears of salary; and ii) to credit the provident fund arrears to the Department.
In the Writ Petition filed by the Management, the learned judge was not right in giving more benefits to the workman than what he was entitled
under the award.
As pointed out earlier, in view of his continued absence, charge memo dated 13.11.1996 was issued to the 1st respondent. Final order was to
be passed in that enquiry. Even when that proceedings was pending, the 1st respondent applied for extensive sick leave from 4.1.1997 to
31.3.1997 on production of the medical certificate issued by Dr. S.P. Suresh, Medical Practitioner, wherein it was stated that the 1st respondent
was suffering from Viral Hepatitis.
Contention of Management is that learned single judge ought to have appreciated that the 1st respondent/workman had committed a serious
charge of fraud and dishonesty, which led to the dismissal of the workman from the service. It was submitted that during the period of claim, the
1st respondent had been running his own business in respect of toll gate collections from two places viz., Burliar and Kunjappanai toll stations. The
contention of management is that if really the workman was sick and suffering from viral Hepatitis he would have required bed rest and it would
hardly be possible for him to carry out his private business on toll gate collections and this act of fraud and dishonestly led to his termination and the
learned judge ought to have appreciated that there cannot be a reward for such an act of dishonesty. It was further submitted that the Labour
Court erred in awarding 25% of the back wages and the learned judge proceeded to enhance the same and prays for allowing of the appeal.
To substantiate its contention that during the said period of sick leave, the 1st respondent was doing his own business of tollgate collection,
Management produced a copy of the letter from the District Collector Nilgiris in l.Dis. 76683/96 dated 17.10.1996, which indicates that the 1st
respondent was given the right to collect tolls for the year 1996-97 in respect of Burliar and Kunjappanai toll stations. Learned counsel for 1st
respondent submitted that the Management had not produced any evidence regarding the alleged toll collection at Burliar and Kunjappanai. When
we peruse the award of the Labour Court and other materials on record, we find that no authentic evidence was produced before the Labour
Court to prove that the 1st respondent was engaged in the business of toll collection at Burliar and Kunjappanai. Therefore, it cannot be said that
the award of the Labour Court ordering 25% of the wages is erroneous and in excess of jurisdiction.
In so far as other allegation that during the sick leave the 1st respondent was engaged in making wedding arrangements of his nephew''s
marriage in the native village between 6.1.1997 to 28.1.1997 and 1st respondent also attended the wedding of Ramkumar''s son at Madras on
31.1.1997, in his explanation, 1st respondent has admitted that he was attending to the wedding arrangements of his brother''s son and that he also
went to Madras to attend the wedding of Ramkumar''s son. The 1st respondent availed medical leave on producing the certificate. Labour Court
recorded factual finding that merely because the 1st respondent made wedding arrangements of his nephew''s marriage and that he attended
marriage of one Ramkumar''s son at Madras on 31.1.1997, it cannot be held that the 1st respondent was hale and healthy. This factual finding
recorded by the Labour Court is based on evidence and material on record and on those materials Labour Court found that the dismissal of 1st
respondent was not justified. In those facts and circumstances Labour Court passed an award directing the Management to pay 25% of the wages
from the date of his termination till the date of superannuation.
Section 11A of the Act provides that if the Labour Court is satisfied that the order of discharge or dismissal was not justified Labour Court
may set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions if any or give such other
relief to workmen. On finding that the dismissal of the 1st respondent was not justified, Labour Court awarded 25% of the wages payable to the
1st respondent and it cannot be held that the award of the Labour Court is erroneous or in excess of jurisdiction warranting interference in
awarding 25% of wages payable.
When the superior Courts can interfere with the order passed by the Labour Court, exercising powers u/s 11A of the Industrial Disputes Act,
1947, is explained by the Supreme Court in the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board,
Rohtak (Haryana), wherein in paragraph 8 the Supreme Court held thus,
Section 11A of the Act clearly provides that where an industrial dispute relating to the discharge or dismissal of workman has been referred to a
Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or
National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order
of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to
the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Wide
discretion is, therefore, vested in the Labour Court while adjudicating an industrial dispute relating to discharge or dismissal of a workman and if
the Labour Court has exercised its jurisdiction in the facts and circumstances of the case to direct re-instatement of a workman with 50% back
wages taking into consideration the pleadings of the parties and the evidence on record, the High Court in exercise of its power under Articles 226
and 227 of the Constitution of India will not interfere with the same, except on well settled principles laid down by this Court for a writ of certiorari
against an order passed by a Court or a Tribunal.
In exercise of power u/s 11A, Labour Court has ordered 25% of the wages payable to the 1st respondent in the writ petition preferred by the
Management. Learned single judge was not right in modifying the award giving more benefits to the workman. Therefore, the order of the learned
judge cannot be sustained and the award passed by the Labour Court is to be restored.
For the foregoing reasons, the Order made in W.P. No. 3362 of 2008 (dated 16.03.2012) is set aside and this Writ Appeal is allowed. The
Award passed by the Labour Court, Madurai in I.D. No. 92 of 2000 (dated 19.3.2008) is restored. However, there is no order as to costs.
Consequently, the connected miscellaneous petition is closed.
Being aggrieved by the order in W.P.(MD) No. 3362 of 2008 (dated 16.3.2012) whereby the learned Judge directed the
appellant/management to pay a lumpsum compensation of Rs. 2,00,000/- (Rupees two lakhs only) in lieu of reinstatement and backwages. By
Judgment dated 22.6.2012, the Writ Appeal was allowed restoring the award passed by the Labour Court in I.D. No. 92 of 2000.
After we disposed of the above Writ Appeal, on being mentioned by the learned counsel for the Appellant management, the Writ Appeal was
listed under the caption ""for Being Mentioned"" today.
Learned counsel for the Appellant management submitted that pursuant to the interim order dated 11.4.2012 passed in M.P.(MD) No. 1 of
2012 in the Appeal, the appellant/management has deposited a sum of Rs. 2,00,000/- to the credit of I.D. No. 92 of 2000 on the file of the
Labour Court, Madurai. Since the Writ Appeal was allowed restoring the Award passed by the Labour Court, Madurai, the learned counsel for
the appellant/management sought permission to withdraw the amount.
Learned counsel for the appellant as well as the learned counsel for the management filed a Memo of Calculation. According to the learned
counsel for the appellant, backwages payable @ 25% is Rs. 1,40,142.085 (vide Calculation in the Memorandum of Writ Appeal).
According to the learned counsel for the respondent/workman, the calculation is as follows:-
The backwages at 25% is - Rs. 1,40,142.08
The earned leave wages is - Rs. 38,970.00
Total Rs. 1,79,112.08
The only dispute between the appellant and the respondent/workman is regarding payment of earned leave wages i.e. Rs. 38,970/- , according to
the respondent/workman. Since there is dispute on the amount payable to the workman, we pass the following order:-
From and out of the amount of Rs. 2,00,000/- (Rupees two lakhs only) deposited by the appellant/management to the credit of I.D. No. 92/2000,
the respondent is permitted to withdraw Rs. 1,00,000/- (Rupees one lakh only) and the appellant/management is permitted to withdraw Rs.
1,00,000/- (Rupees one lakh only). Such withdrawal is without prejudice to the contention of both parties. Excepting the above change, the
judgment of this Court in the above Writ Appeal, dated 22.6.2012 remains unaltered in all other aspects.
The above order is passed giving liberty to the respondent/workman to workout his remedy by filing claim petition before the Labour Court.