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
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
