Madras High Court
Bharathi Co-Operative Spinning ... vs The Presiding Officer on 7 January, 2021
W.P.(MD)Nos.10146 and 10147 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2021
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)Nos.10146 and 10147 of 2010
W.P.(MD)No.10146 of 2010:-
Bharathi Co-operative Spinning Mills Limited,
represented by its Administrator,
Ettayapuram, Tuticorin District. : Petitioner
Vs.
1.The Presiding Officer,
Labour Court, Tirunelveli.
2.V.Ganapathy : Respondents
PRAYER:- Petition filed under Article 226 of the Constitution of India seeking
a Writ of Certiorari, to call for the records in the award dated 28.04.2009 made
in I.D.No.67 of 2005 on the file of the first respondent Labour Court and quash
the same.
For Petitioner :Mr.K.Hemakarthikeyan
For R2 :Mr.D.Srinivasa Ragavan
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W.P.(MD)Nos.10146 and 10147 of 2010
W.P.(MD)No.10147 of 2010:-
Bharathi Co-operative Spinning Mills Limited,
represented by its Administrator,
Ettayapuram, Tuticorin District. : Petitioner
Vs.
1.The Presiding Officer,
Labour Court, Tirunelveli.
2.S.Kandasamy : Respondents
PRAYER:- Petition filed under Article 226 of the Constitution of India seeking
a Writ of Certiorari, to call for the records in the award dated 22.04.2009 made
in I.D.No.70 of 2005 on the file of the first respondent Labour Court and quash
the same.
For Petitioner :Mr.K.Hemakarthikeyan
For R2 :Mr.D.Srinivasa Ragavan
****
COMMON ORDER
Challenging the Award passed by the first respondent, in I.D.Nos.67 and
70 of 2005, dated 28.04.2009 and 22.04.209, respectively, these Writ Petitions
have been filed.
2.Since the issues involved in these Writ Petitions are similar, these Writ
Petitions are disposed of by way of this common order.
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W.P.(MD)Nos.10146 and 10147 of 2010
3.It is the case of the petitioner that the second respondents were working
as Slider in the petitioner Management from the year 1983 and 1984, onwards,
respectively. Their last drawn salary is Rs.5,203/- and Rs.5,165/- respectively.
While so, disciplinary action was initiated against the second respondents
alleging that they are defaming the reputation of the petitioner management and
its officials. The second respondents/workmen have submitted their respective
explanation. Since their explanation was not satisfactory, an Enquiry Officer
was appointed. The Enquiry Officer, after hearing the second respondents and
the petitioner management, has submitted his report that the charges levelled
against the second respondents were found to be proved and based on which,
the petitioner management has passed the order of dismissal from their
employment against the second respondents.
4.As against the order of dismissal, the second respondents have raised
industrial disputes before the Labour Court, Tirunelveli, in I.D.Nos.67 and 70 of
2005, respectively. The Labour Court, Tirunelveli, by considering the gravity of
charges levelled against the second respondents and the punishment imposed by
the petitioner management, set aside the order of dismissal and directed the
petitioner management to reinstate the second respondents into service.
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W.P.(MD)Nos.10146 and 10147 of 2010
Challenging the award passed by the first respondent, the present Writ Petitions
are filed by the petitioner Management.
5.The learned Counsel for the petitioner, on instructions, would submit
that pending these Writ Petitions, the second respondent in W.P.(MD)No.10146
of 2010 was reinstated into service with continuity of service, but without back
wages and he has also retired from service in December'2020. Hence, nothing
survives for further adjudication in W.P.(MD)No.10146 of 2010.
6.In respect of W.P.(MD)No.10147 of 2010 is concerned, the learned
Counsel for the petitioner would submit that subsequent to the dismissal from
service, the second respondent has got gainful employment as LIC agent and
with regard to the payment of wages as per Section 17B of the Industrial
Disputes Act, 1947, the second respondent has filed a Miscellaneous Petition in
M.P.(MD)No.1 of 2011 in W.P.(MD)No.10147 of 2010, for payment of 17B
wages and this Court has also granted an order directing the petitioner
management to pay 17B wages. However, aggrieved by the said order, the
petitioner Management filed an appeal before this Court in W.A.(MD)No.501 of
2011. The Honourable Division Bench of this Court, by judgment, dated
06.09.2011, allowed appeal by holding that the second respondent was gainfully
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W.P.(MD)Nos.10146 and 10147 of 2010
employed in the LIC and denied payment of wages. Hence, the learned Counsel
for the petitioner would submit that this Court may modify the award of the
Labour Court into one as compulsory retirement without back wages.
7.The learned Counsel for second respondent vehemently opposed the
contentions raised by the learned Counsel for the petitioner, contending that
even though the second respondent was an LIC agent, he has received only a
meagre amount and therefore, it cannot be termed that the second respondent
was in gainful employment and was earning out it. He would also submit that
the second respondent is the only breadwinner of his family and he prays for
dismissal of this Writ Petition.
8.Heard Mr.K.Hemakarthikeyan, learned Counsel for the petitioner and
Mr.D.Srinivasa Ragavan, learned Counsel for the second respondent and
perused the materials placed on record.
9.It has been the consistent view of the Courts that it is always within the
domain of the appointing authority to decide on the punishment to be imposed
on the delinquent, which should be proportionate to the act of the delinquent.
Only when the punishment is disproportionate and shocking to the conscience,
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W.P.(MD)Nos.10146 and 10147 of 2010
should the courts interfere in the same in exercise of powers under Art. 226 of
the Constitution. In Prem Nath Bali – Vs - High Court of Delhi (2015 (16)
SCC 415), the Hon'ble Supreme Court held as under :-
“20. It is a settled principle of law that once the charges levelled
against the delinquent employee are proved then it is for the
appointing authority to decide as to what punishment should be
imposed on the delinquent employee as per the Rules. The appointing
authority, keeping in view the nature and gravity of the charges,
findings of the inquiry officer, entire service record of the delinquent
employee and all relevant factors relating to the delinquent, exercised
its discretion and then imposed the punishment as provided in the
Rules.
21. Once such discretion is exercised by the appointing authority
in inflicting the punishment (whether minor or major) then the courts
are slow to interfere in the quantum of punishment and only in rare
and appropriate case substitutes the punishment. Such power is
exercised when the court finds that the delinquent employee is able to
prove that the punishment inflicted on him is wholly unreasonable,
arbitrary and disproportionate to the gravity of the proved charges
thereby shocking the conscience of the court or when it is found to be
in contravention of the Rules. The Court may, in such cases, remit the
case to the appointing authority for imposing any other punishment as
against what was originally awarded to the delinquent employee by
the appointing authority as per the Rules or may substitute the
punishment by itself instead of remitting to the appointing authority.”
(Emphasis Supplied)
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W.P.(MD)Nos.10146 and 10147 of 2010
10.This Court, keeping in mind the ratio laid down by the Hon'ble Apex
Court in relation to interfering with the punishment imposed by the disciplinary
authority, would now proceed to dissect the materials available on record to find
out whether the punishment imposed on the second respondent is wholly
unreasonable, arbitrary and disproportionate to the gravity of the proved charges
thereby shocking the conscience of the court requiring interference.
11.According to the petitioner, the second respondent in W.P.(MD)No.
10146 of 2010, was reinstated into service during the pendency of the Writ
Petition and got retirement in 2020 and this was also affirmed by the learned
Counsel for the second respondent. Hence, the order of Labour Court, in
I.D.No.67 of 2005, dated 28.04.2009, is modified to that of a reinstatement of
the second respondent without back wages.
12.Insofar W.P.(MD)No.10147 of 2010 is concerned, the fact that the
second respondent was gainfully employed, subsequent to the order of
termination was established before the Honourable Division Bench of this Court
in W.A.(MD)No.501 of 2011, which was filed by the petitioner Management
against the order of this Court in M.P.(MD)No.1 of 2011, for payment of wages
as per Section 17B of the Industrial Disputes Act, 1947. It is proved that the
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W.P.(MD)Nos.10146 and 10147 of 2010
second respondent, after the dismissal from service, was in gainful employment.
It appears that the workman reached the superannuation. Ordering
reinstatement may not solve the issue. Hence, I am inclined to modify the order
of reinstatement to that of compulsory retirement. The second respondent
workman is entitled to monetary benefits including the continuity of service
from the date of entering into service till the date of his superannuation without
any back wages.
13.Accordingly, the award of the first respondent in I.D.No.70 of 2005,
dated 22.04.2009, is modified into one as compulsory retirement without back
wages. However, the second respondent workman is entitled to monetary
benefits including the continuity of service from the date of entering into
service till the date of his superannuation without any back wages.
14.With the above modifications, these Writ Petitions are disposed of.
No costs.
Index : Yes/No 07.01.2021
cmr
To
The Presiding Officer,
Labour Court, Tirunelveli.
http://www.judis.nic.in
W.P.(MD)Nos.10146 and 10147 of 2010
M.DHANDAPANI, J.
cmr
W.P.(MD)Nos.10146 and 10147 of 2010
07.01.2021
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