& Ors. Etc.Etc Vs. G.M., Gujarat Ambuja Cement Pvt. Ltd  Insc 994 (28 September 2007)
Arijit Pasayat & Lokeshwar Singh Panta
APPEAL NO. 892 OF 2007 Dr. ARIJIT PASAYAT, J.
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').
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.
Background facts in a nutshell are as follows:
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.
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
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 the Labour Court. These directions read as follows:
For the reason stated above, it is necessary to quash and set aside the
impugned judgment and awards while giving the following directions:-
proceedings of aforesaid Reference Cases are remanded back to the Labour Court for re- trial.
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
The respondents will be at liberty to lead evidence contra.
The material already adduced before the Labour Court including the oral evidence led on behalf of the
respondents will remain as it is.
Labour Court to complete the hearing and final declaration of the judgment and
awards on or before 30th
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".
After remand, the Labour
Court took up the
proceedings afresh, recorded the evidence and passed the awards on 31.12.2004.
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
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
charges read as follows:
Use of impertinent languages, insult to superiors, indecent behaviour,
insubordination and any act which is subversive of discipline.
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
Inciting and/or instigating other employees 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.
Disorderly behaviour and conduct endangering the life or safety of any person
within the factory premises.
Act of sabotage of causing damage to the work in progress or to any property of
the management wilfully.
interference with the work of another workman or of a person authorised by the
management to work on its premises.
Holding or participating in the meetings, demonstrations and shouting of
slogans inside the factory premises or mines or residential colony.
absence from duty for more than eight consecutive days.
Committing a nuisance in the premises of the factory, breach of these standing
Canvassing for trade union membership and collection of union funds within the
premises except as permissible under law.
Making a false, vicious or malicious statement in public against
management/factory or officer.
Instigation, incitement, abetment or furtherance of any of the above acts.
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
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
the employer's Special Civil Applications were allowed and those filed by the
workmen were dismissed. It was concluded inter alia as follows:
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 powers of the Labour Court or Industrial Tribunal
while examining the conclusions arrived at by the employer during the course of
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.
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
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.
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
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.
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.
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.
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.
When the Labour Court found that the workmen had 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.
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.
the agreement, the following terms were provided:
The case of eight disputed workmen will be reviewed sympathetically within a
period of one month.
The workmen will give undertaking as decided.
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.
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. "
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.
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 'disproportionate' or 'grossly disproportionate' by
itself will not be sufficient.
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)].
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.
These aspects were highlighted in Life Insurance Corporation of India v. R. Dhandapani (AIR 2006 SC 615).
Power and discretion conferred under the Section needless to say have to be
exercised judicially and judiciously.
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
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.
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.
The appeal is disposed of accordingly with no order as to costs.