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Monday, December 16, 2013

Industrial dispute - Dismissed some workers as they disobeyed the management orders - workmen contended it's a additional work with out any additional wages - Tribunal find misconduct as proved - but set aside the dismissal order as it is not in proportionate of offence committed and directed to reinstate with 50% back wages - High court confirmed the same and dismissed the management writ - Apex court held - Tribunal finding about prove of misconduct is also wrong as the protest of worker is valid one as per law as it is a additional work with out additional wages - scope of or .41, rule 22 c.p.c. applied a winning party can even though there was no counter appeal challenge the negative findings against him - Since workers not filed any appeal on back wages final relief - confirmed the orders of lower courts and dismissed the civil appeal filed by management = Management of Sundaram Industries Ltd. …Appellant Versus Sundaram Industries Employees Union …Respondent = Published in judis.nic.in/supremecourt/filename=41089

 Industrial dispute - Dismissed some workers as they disobeyed the management orders - workmen contended it's a additional work with out any additional wages - Tribunal find misconduct as proved - but set aside the dismissal order as it is not in proportionate of offence committed and directed to reinstate with 50% back wages - High court confirmed the same and dismissed the management writ - Apex court held - Tribunal finding about prove of misconduct is also wrong as the protest of worker is valid one as per law as it is a additional work with out additional wages - scope of or .41, rule 22 c.p.c. applied  a winning party can even though there was no counter appeal challenge the negative findings against him - Since workers not filed any appeal on back wages final relief - confirmed the orders of lower courts  and dismissed the civil appeal filed by management =
Whether or  not  the  punishment
is disproportionate more often than not depends upon  the  circumstances  in
which the alleged misconduct was  committed,  as  also  the  nature  of  the
misconduct.    =
It is thus evident that the refusal of the workmen to  carry  out  the
instructions  issued  by  the  management  was  not  without  a  lawful   or
reasonable justification.  The same could not at any rate  be  described  as
contumacious. The essence of the matter was whether  the  management  could,
without additional remuneration, ask the workmen who  were  responsible  for
attending to the production work alone  to  do  additional  work  which  was
hitherto being done by another group of workmen, especially when  compliance
with the instructions to  the  workmen  would  require  them  to  tie  their
production bags, carry them to the weighing machine, wait in the queue  till
the process was to be completed and leave only thereafter
Or.41, rule 22 of C.P.C. - with out applying  for appeal a winning party to the suit can defend the favour point and also negative points in the judgment in any appeal  =
On behalf of the appellant it  was  contended  that  the  respondents-
workmen were not legally entitled to assail the finding of the tribunal,  on
the charges framed against them, as the workmen had not assailed  the  award
made by the Tribunal before the High Court. The  findings  of  the  Tribunal
had on that account attained finality. 
 We do not think  so.   The  Tribunal
had no doubt held the charges to have been proved but it had,  despite  that
finding, set aside the dismissal of the workmen on the ground that the  same
was disproportionate to the gravity of  the  misconduct.   It  had  on  that
basis directed reinstatement with 50% back wages.  To that extent the  award
was in favour of the workmen which they had no  reason  to  challenge.   But
that did not mean that in any proceedings against the award  the  respondent
workmen could not support the  direction  for  their  reinstatement  on  the
ground that the finding of the Tribunal regarding proof  of  misconduct  was
not justified.  
The legal position is fairly well settled  that  a  judgment
can be supported by the party in whose favour the same  has  been  delivered
not only on the grounds found in his favour but also  on  grounds  that  may
have been held against him by the  Court  below.   
whether  the
Tribunal and the High Court were justified in holding that  the  penalty  of
dismissal imposed upon the workmen was disproportionate to  the  gravity  of
the misconduct allegedly committed by them. =
Even assuming that the finding regarding the commission of  misconduct
is left undisturbed, the circumstances in which the workmen are  alleged  to
have disobeyed the instructions issued to them did not justify  the  extreme
penalty of their dismissal.  
At any rate, the Labour Court having  exercised
its discretion in setting aside the dismissal order on the ground  that  the
same was disproportionate, the High  Court  was  justified  in  refusing  to
interfere with that order under Article 226 of the Constitution.  
There  is
in any event no compelling reason for us to invoke our  extraordinary  power
under Article 136 of the Constitution or to interfere  with  what  has  been
done by the two Courts below. 
But for the fact that there is  no  appeal  or challenge to the denial of full back wages to the workmen, we may have  even interfered to award the same to the  workmen.   
Be  that  as  it  may,  this
appeal is destined to be dismissed and  is,  hereby,  dismissed  with  costs
assessed at Rs.25,000/-


                                     REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                      CIVIL APPEAL NO. 11016   OF 2013
                (Arising out of S.L.P. (C) No.22463 of 2011)

Management of Sundaram
Industries Ltd.                                    …Appellant

      Versus

Sundaram Industries Employees Union                …Respondent


                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.

2.    This appeal arises out of a judgment and order dated 27th April,  2011
passed by a Division Bench  of  the  High  Court  of  Judicature  at  Madras
whereby Writ Appeal No.702 of 2011 and  M.P.  No.1  of  2011  filed  by  the
appellant have been dismissed and order dated 28th February, 2011 passed  by
a learned Single Judge of that  Court  in  Writ  Petition  No.8019  of  2010
affirmed.

3.     The  appellant-company  is  engaged  in  the  manufacture  of  rubber
products for various industrial  applications.   It  had,  at  the  relevant
point of time, 877 employees in its establishment. As many as 488  of  these
employees were working as moulders to operate the rubber moulding  machines.
The moulding work involved placing rubber  into  the  moulding  press  which
would then be  pressed  into  rubber  components  and  marketed  for  varied
industrial and commercial uses.

4.    In March 1999, the management of the  appellant-company  required  the
workmen engaged as moulders to place their individual bags of production  on
the weighing scale at the end  of  their  work  shift.  That  procedure  was
observed for about a week whereafter 13 out  of  488  moulders  declined  to
abide by the instructions issued by the management.  The defaulting  members
of the work force  were  on  that  basis  placed  under  suspension  by  the
management.  Aggrieved  by  the  action  taken  against  its  members,   the
respondent-union raised a dispute before the Labour Officer who advised  the
union and its workmen  to  tender  an  apology  to  the  management  and  an
undertaking to the effect that they would not repeat their acts  in  future.


5.    The appellant’s case is  that  despite  the  apology  and  undertaking
furnished pursuant to the said  advice,  the  defaulting  workmen  not  only
continued disobeying  the  instructions  but  succeeded  in  enticing  three
others to follow suit, thereby disrupting  the  work  in  the  factory.  The
appellant took note of the disobedience shown by the workmen  concerned  and
initiated disciplinary proceedings against them  in  April,  1999.  
Pending
such proceedings the workmen concerned were placed under suspension  on  the
charge of their having  persistently  refused  to  follow  the  instructions
despite an apology and undertaking furnished by them  earlier.
The  inquiry
initiated against the workmen culminated in the dismissal of the  delinquent
workmen based on the charges  of  misconduct,  persistent  disobedience  and
insubordination  proved  against  them.  
The  respondent-union  once  again
espoused the cause of the workmen and approached  the  Industrial  Tribunal,
Chennai in a reference made  by  the  Government  for  adjudication  of  the
dispute.
The Tribunal came to the conclusion  that  although  the  domestic
inquiry conducted by the management against the delinquent workmen was  fair
and proper and  the  charges  stood  proved,  the  punishment  of  dismissal
imposed upon the workmen was shockingly disproportionate to the  gravity  of
the offence.
The Tribunal accordingly  set  aside  the  order  of  dismissal
passed against the workmen and directed their reinstatement  with  50%  back
wages.

6.    Aggrieved by the award made by the Tribunal, the  appellant  preferred
Writ Petition No.8019 of 2010 before the High  Court  at  Madras  which  was
heard and dismissed by a learned Single Judge of that  Court  by  his  order
dated 28th February, 2011.  Writ Appeal No.702 of  2011  and  M.P.  No.1  of
2011 filed by the management also failed and were dismissed  by  a  Division
Bench of that Court.  The present appeal assails the said orders as  noticed
above.

7.    Appearing  for  the  appellant  Mr.  K.K.  Venugopal,  learned  senior
counsel, strenuously argued that the Tribunal and so  also  the  High  Court
were  in  error  in  interfering  with  the  punishment  imposed  upon   the
defaulting workmen.  He urged that the conduct  of  the  delinquent  workmen
was wholly unjustified having regard to the  fact  that  they  had,  in  the
course of the proceedings before  the  Labour  Officer,  Madurai,  not  only
apologised for their misconduct but filed an undertaking in writing to  obey
their superior officers in the future.  It was only on that basis  that  the
management had revoked the orders of suspension issued by it  and  permitted
the workmen to resume their duties.  Viewed in that background  the  workmen
were not justified, argued Mr. Venugopal, to go back on  their  promise  and
undertaking and refuse to place their individual bags of production  on  the
weighing scale  as  instructed  to  do  so.  Inasmuch  as  the  workmen  had
continued with their deliberate and defiant attitude despite a chance  given
to them to improve their conduct, they did not  deserve  any  sympathy,  nor
could the punishment of dismissal from  service  on  proof  of  the  charges
framed against them be considered disproportionate to  the  gravity  of  the
misconduct committed by them.

8.    On behalf of the respondent-union it was  argued  by  Mr.  V.  Prakash
that the Tribunal and so also the High Court were justified  in  interfering
with the orders of dismissal passed  against  the  workmen.  The  orders  of
dismissal were, according to the learned counsel,  not  only  on  facts  but
even in equity unsustainable, the same having been passed  in  a  spirit  of
vengeance and with a view  to  deter  other  workmen  from  objecting  to  a
practice which was, on the face  of  it,  unjustified  involving  additional
work beyond the shift hours without the  management  paying  any  additional
wages for the same.  The Tribunal and the High Court having exercised  their
powers fairly and reasonably, there was, according to  the  learned  counsel
no reason, much less a compelling one, for this Court to interfere with  the
impugned orders.

9.    The short  question  that  falls  for  determination  is
whether  the
Tribunal and the High Court were justified in holding that  the  penalty  of
dismissal imposed upon the workmen was disproportionate to  the  gravity  of
the misconduct allegedly committed by them. 
Whether or  not  the  punishment
is disproportionate more often than not depends upon  the  circumstances  in
which the alleged misconduct was  committed,  as  also  the  nature  of  the
misconduct.  That makes it necessary for us to briefly  refer  to  the  real
controversy that gave rise to the proceedings culminating in  the  dismissal
of the workmen. The proceedings, it is common ground, started with a  report
dated  11th  April,  1999  submitted  by  the  Supervisor  to  the   Manager
(Personnel) in which he said:

           “All the workmen had  been  earlier  informed  that  instead  of
           placing the bags of their production on  the  floor  at  end  of
           shift they were to place the bags  on  the  electronic  weighing
           scale placed there.  Mr. J.D. Jose Balan also  knows  about  it.
           While all the workmen were adhering to the above procedure,  Mr.
           Jose Balan refused  to  place  his  bag  of  production  on  the
           weighing scale on the above said dates.  Every time I  mentioned
           about this he said “my shift time has ended.  I  will  not  work
           after that.  Therefore I cannot weigh.”   On  all  the  days  he
           refused to do the work, I informed him that work even  for  five
           minutes after shift end, cannot be considered  as  overtime  and
           that already he was working only for 7-1/2 hours in a shift of 8
           hours the balance half hour being lunch time and so he would  be
           wrong in saying that shift has ended or this is  more  work.  In
           spite of this he refused to do that work, but placed the bags of
           washers produced on the floor and left without getting his time-
           card signed.”



10.   It is evident from the above that the discord between the workmen  and
the management arose entirely out of the management  requiring  the  workmen
to place the bag of  their  production  on  the  electronic  weighing  scale
instead of placing them on the floor at the end of the shift  as  they  were
doing till the management issued fresh instructions that demanded  that  the
workmen carry their production bags to the  electronic  weighing  scale  for
weighment. The workmen  considered  this  additional  responsibility  to  be
involving not only additional work in carrying the  production  bag  to  the
weighing machine but also in  devoting  additional  time  beyond  the  shift
hours without any additional remuneration for the  same.   The  workmen  set
out the necessary facts in the claim statement filed by the Union  on  their
behalf before the Industrial Tribunal in which they stated:

           “The management had also directed the moulders to  put  all  the
           produced rubber washers in a gunny bag and tie them, which  work
           was hitherto done by another  team.  For  this  work  also,  the
           management promised higher wages and the workers are  now  doing
           both the aforesaid works, but the management  failed  to  fulfil
           its promise to pay higher wages for doing the extra  work.  This
           takes one hour more to do the quality control check and also put
           all the manufactured washers into the gunny bag after the  shift
           hours.  For this overtime work, the management is not giving any
           overtime pay to the workers.”




11.    Before  the  Tribunal  the  respondent-union  adduced   evidence   to
substantiate their claim that the  instructions  issued  by  the  management
required the workmen to tie the bag of their production, carry the  same  to
the weighing machine, wait for their turn in a queue to have the  production
bag weighed and get the necessary entries regarding the same made, which  in
turn took  upto  an  hour  after  the  shift  was  over.  Deposition  of  S.
Thangaswamy, President of the respondent-union, in this regard  is  relevant
when he states :

           “In the respondent establishment the work  of  the  moulders  is
           only to do the operations in connection with the  production  of
           the rubber auto components. The  inspection  of  the  components
           produced was that of another group consisting  of  the  Manager,
           Supervisors and a team of ten workmen.  The Management  suddenly
           disbanded this group and directed the moulders themselves to  do
           the  inspection  of  the  components  produced.  The  Management
           assured  to  monetarily  compensate  the   moulders   for   this
           additional work.  In addition the Management  directed  them  to
           put and keep the finished components in a bag. For this also the
           Management assured to monetarily compensate the moulders.

                 They had to bag the components  produced  after  shift  was
           over and take it, stand in a queue and have  the  bags  weighed.
           The weighing machine was situated about 100 to 150 feet from the
           production table. The weight of the bags containing the  washers
           produced by me could be from  10  kilos  to  150  kilos.   After
           weighment the weight must be entered in the press  card  and  we
           must have to stand in queue to get it signed as well as the time
           card.  To do all this, it will take one  hour.   As  measure  of
           victimisation disciplinary action was taken against  15  workers
           for having raised  a  dispute  before  the  court  and  we  were
           dismissed.”



12.   More importantly, the deposition of Mr. Damodaran a  witness  examined
by the appellant who was at the relevant point of time  working  as  manager
in the moulding department, makes it clear that the workman had  refused  to
place bags on the weighing machine at the end of the shift as any such  work
had to be done after the shift hours.  This is evident  from  the  following
part of the deposition:

           “We have three shifts. 8 AM to 4 PM;  4PM  to  12  Midnight,  12
           Midnight to 9 AM.  It will be right to say that the Management’s
           charge against the workmen concerned in the dispute is that they
           refused to place the bags on the  weighing  machine  at  end  of
           shift.  The stand of the workman is that they will not  do  this
           work after shift hours.”




13.   It is thus evident that the refusal of the workmen to  carry  out  the
instructions  issued  by  the  management  was  not  without  a  lawful   or
reasonable justification.  The same could not at any rate  be  described  as
contumacious. The essence of the matter was whether  the  management  could,
without additional remuneration, ask the workmen who  were  responsible  for
attending to the production work alone  to  do  additional  work  which  was
hitherto being done by another group of workmen, especially when  compliance
with the instructions to  the  workmen  would  require  them  to  tie  their
production bags, carry them to the weighing machine, wait in the queue  till
the process was to be completed and leave only thereafter. In the course  of
hearing before us, it was fairly  conceded  by  the  representative  of  the
appellant that since the number of moulders  working  in  the  establishment
was fairly large and weighing machines limited in number,  the  workmen  had
to wait in a queue for their turn to have  their  production  weighed  which
was earlier being done by some other workmen who were  disbanded.   Inasmuch
as  the  workmen  concerned  had  declined  to  undertake  this   additional
responsibility which  was  not  only  consuming  additional  time  but  also
additional effort they could not be accused of  either  deliberate  defiance
or misconduct that could be punished. The Tribunal was in  that  view  wrong
in holding that the  charge  framed  against  the  respondents  was  proved.
Refusal to carry out the instructions requiring  workmen  to  do  additional
work  beyond  the  shift  hours  was  clearly  tantamount  to  changing  the
conditions of  service  of  the  workmen  which  was  impermissible  without
complying with the requirements of Section 9-A of  the  Industrial  Disputes
Act.

14.   On behalf of the appellant it  was  contended  that  the  respondents-
workmen were not legally entitled to assail the finding of the tribunal,  on
the charges framed against them, as the workmen had not assailed  the  award
made by the Tribunal before the High Court. The  findings  of  the  Tribunal
had on that account attained finality. 
 We do not think  so.  
The  Tribunal
had no doubt held the charges to have been proved but it had,  despite  that
finding, set aside the dismissal of the workmen on the ground that the  same
was disproportionate to the gravity of  the  misconduct.   It  had  on  that
basis directed reinstatement with 50% back wages.  To that extent the  award
was in favour of the workmen which they had no  reason  to  challenge.   But
that did not mean that in any proceedings against the award  the  respondent
workmen could not support the  direction  for  their  reinstatement  on  the
ground that the finding of the Tribunal regarding proof  of  misconduct  was
not justified.  
The legal position is fairly well settled  that  a  judgment
can be supported by the party in whose favour the same  has  been  delivered
not only on the grounds found in his favour but also  on  grounds  that  may
have been held against him by the  Court  below.  
This  is  evidenced  from
Order XLI Rule 22 of the CPC which reads :


           “22. Upon hearing respondent may object to decree as if  he  had
           preferred a separate appeal. - (1) Any respondent, though he may
           not have appealed from any part of  the  decree,  may  not  only
           support the decree [but may also state that the finding  against
           him in the Court below in respect of any  issue  ought  to  have
           been in his favour; and may also take  any  cross-objection]  to
           the decree which he could have taken by way of  appeal  provided
           he has filed such objection in the Appellant  Court  within  one
           month from the date of service on him or his pleader  of  notice
           of the day fixed for hearing the appeal, or within such  further
           time as the Appellate Court may see fit to allow.


           [Explanation.--A respondent aggrieved by a finding of the  Court
           in the judgment on which the decree appealed  against  is  based
           may, under this rule, file cross-objection  in  respect  of  the
           decree in so far as it is based on that finding, notwithstanding
           that by reason of the decision of the Court on any other finding
           which is sufficient for the decision of the  suit,  the  decree,
           is, wholly or in part, in favour of that respondent.]


           (2) Form of objection and provisions applicable thereto. -  Such
           cross-objection shall be in the form of a  memorandum,  and  the
           provisions of rule 1, so far as they  relate  to  the  form  and
           contents of the memorandum of appeal, shall apply thereto.


           3[***]


           (4) Where, in any case in which any respondent  has  under  this
           rule filed a memorandum of objection,  the  original  appeal  is
           withdrawn or is dismissed for default, the  objection  so  filed
           may nevertheless be heard and determined after  such  notice  to
           the other parties as the Court thinks fit.


           (5) The provisions  relating  to  appeals  by  indigent  persons
           shall, so far as they  can  be  made  applicable,  apply  to  an
           objection under this rule.”



15.   The principle underlying the above provision  is  applicable  even  to
Appeals by Special Leave under Article 136 of the Constitution of  India  as
held by this Court in Jamshed Hormusji Wadia v. Board of Trustees,  Port  of
Mumbai and Anr. 2004 (3) SCC 214, where this Court observed:

           “35. A few decisions were brought to the notice of this Court by
           the learned Additional Solicitor General wherein this Court  has
           made a reference to Order 41  Rule  22  CPC  and  permitted  the
           respondent to support the decree or  decision  under  appeal  by
           laying challenge to a finding recorded or issue decided  against
           him though the order, judgment or decree was in the end  in  his
           favour. Illustratively, see Ramanbhai Ashabhai  Patel,  Northern
           Rly. Coop. Society Ltd. and Bharat Kala Bhandar Ltd. The learned
           Additional Solicitor General is right.  But  we  would  like  to
           clarify that this is done not because Order 41 Rule  22  CPC  is
           applicable  to  appeals  preferred  under  Article  136  of  the
           Constitution; it is because of  a  basic  principle  of  justice
           applicable to courts of superior jurisdiction. A person who  has
           entirely succeeded before a court or tribunal below cannot  file
           an appeal solely for the  sake  of  clearing  himself  from  the
           effect of an adverse finding or an adverse decision  on  one  of
           the issues as he would  not  be  a  person  falling  within  the
           meaning of  the  words  “person  aggrieved”.  In  an  appeal  or
           revision, as a matter of general principle, the party who has an
           order in his favour, is entitled to show that even if the  order
           was liable to be set aside on the grounds decided in his favour,
           yet the order could be sustained by  reversing  the  finding  on
           some other ground which was decided against  him  in  the  court
           below. This position of law is supportable on general principles
           without having recourse to Order 41 Rule 22 of the Code of Civil
           Procedure. Reference may be had to a  recent  decision  of  this
           Court in Nalakath Sainuddin  v.  Koorikadan  Sulaiman  and  also
           Banarsi v. Ram  Phal.  This  Court  being  a  court  of  plenary
           jurisdiction, once the matter has come to it  in  appeal,  shall
           have power to pass any decree and make any order which ought  to
           have been passed or made as  the  facts  of  the  case  and  law
           applicable thereto call for. Such a power is exercised  by  this
           Court by virtue of  its  own  jurisdiction  and  not  by  having
           recourse to Order 41 Rule 33 CPC though in  some  of  the  cases
           observations are available to the effect that this Court can act
           on the principles deducible from Order 41 Rule 33 CPC. It may be
           added that this Court has jurisdiction to pass  such  decree  or
           make such order as is necessary for doing  complete  justice  in
           any cause or matter pending  before  it.  Such  jurisdiction  is
           conferred on this Court by Article 142 of the  Constitution  and
           this Court is not required to have recourse to any provision  of
           the  Code  of  Civil  Procedure  or  any   principle   deducible
           therefrom. However, still, in spite  of  the  wide  jurisdiction
           being available, this Court would not ordinarily make an  order,
           direction or decree placing the  party  appealing  to  it  in  a
           position more disadvantageous than in what it  would  have  been
           had it not appealed.”




16.   We have, therefore, no hesitation in  rejecting  the  contention  that
the finding regarding commission of misconduct  by  the  workmen  cannot  be
assailed by the workmen in these proceedings.

17.   Even assuming that the finding regarding the commission of  misconduct
is left undisturbed, the circumstances in which the workmen are  alleged  to
have disobeyed the instructions issued to them did not justify  the  extreme
penalty of their dismissal.
At any rate, the Labour Court having  exercised
its discretion in setting aside the dismissal order on the ground  that  the
same was disproportionate, the High  Court  was  justified  in  refusing  to
interfere with that order under Article 226 of the Constitution.  
There  is
in any event no compelling reason for us to invoke our  extraordinary  power
under Article 136 of the Constitution or to interfere  with  what  has  been
done by the two Courts below. 
But for the fact that there is  no  appeal  or
challenge to the denial of full back wages to the workmen, we may have  even
interfered to award the same to the  workmen.   Be  that  as  it  may,  this
appeal is destined to be dismissed and  is,  hereby,  dismissed  with  costs
assessed at Rs.25,000/-



                                                         …………………….……….…..…J.
                                                    (T.S. THAKUR)





                                                          …………………………..…………J.
New Delhi                                    (VIKRAMAJIT SEN)
December 13, 2013

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