N.Ayyappa Raju v. The Presiding Officer,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.12.2024 CORAM :

THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY Petitioner in N.Ayyappa Raju ..

W.P.No.10211 of 2017 The Management of India Nippon Electricals Ltd. Hosur - Thalli Road, Uliveeranapalli Hosur - 635 114 Petitioner in Rep. By its Head - Corporate HR ..

W.P.No.4024 of 2015 Vs.

1. The Presiding Officer Labour Court, Salem.

2. The Management of India Nippon Electricals Ltd. Hosur - Thalli Road, Uliveeranapalli Hosur - 635 114 Respondents in Rep. By its Head - Corporate HR ..

W.P.No.10211 of 2017

1. The Presiding Officer Labour Court, Salem.

Respondents in

2. N.Ayyappa Raju ..

W.P.No.4024 of 2015 Prayer in W.P.No.10211 of 2017: Petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus, calling for the records from the first respondent relating to the award dated 11.11.2014 in I.D.No.86 of 2012 and quash only that portion of the impugned award where the Labour Court has awarded only 40% backwages and denied 60% backwages without any reason, and hold that the petitioner is entitled to get full backwages and other service benefits including increments and promotion etc., and direct the second respondent management to pay full backwages and other

attended service benefits including increment, promotion etc., to the petitioner; and Prayer in W.P.No.4024 of 2015: Petition filed under Article 226 of the Constitution of India praying for a writ of certiorari, calling for the records of the first respondent in I.D.No.86 of 2012 and quash its award dated 11.09.2014.

For the Petitioner in W.P.No.10211 of 2017 and for R2 in W.P.No.4024 of 2015 : Mr.R.Rajaram For R2 in W.P.No.10211 of 2017 and for the petitioner in W.P.No.4024 of 2015 : Mr.P.Raghunathan for M/s.T.S.Gopalan and Co.

COMMON ORDER Both these writ petitions are challenging the selfsame award of the Labour Court dated 11.09.2014 made in ID.No.86 of 2012.

2. By the said award, the Labour Court ordered reinstatement of the workman with 40% of the backwages and continuity of service. Aggrieved over the same, the Management has filed W.P.No.4024 of 2015. Aggrieved by the quantum of the backwages, the workman has filed W.P.No.10211 of 2017. As such, both these writ petitions are taken up and decided by this common order.

3.1. The factual background in which these writ petitions arise are that the workman joined service of the Management on 11.05.1993. While so, on 29.06.2011, he wrote a letter to the President of the Management Company. It is essential to reproduce the entire letter which reads as follows:-

3.2. Thereafter, he said to have written one more letter to the Labour Officer, before whom conciliation proceedings were pending, on 29.06.2011. The same is also on similar lines as of the earlier letter. A copy of the said letter was marked to the High Management, the President of the Management and also to the Chief Minister Cell. The said letter is also extracted hereunder:-

3.3. In respect of the letter written to the President, a reply was also given on 30.06.2011, stating that even when the workman was an Office Bearer, the Management used to duly negotiate and fix wages. Therefore, when the settlement talks were being held with the elected Office Bearers, his allegations are incorrect and that no further benefits could be extended to the workman alone. Under these circumstances, a charge memo came to be issued on 01.07.2007 and it is essential to extract the charges, which reads as under:-

3.4. It is necessary to note the conditions of the Standing Order 19, which reads as follows:

3.5. The workman submitted his explanation on 04.07.2011, explaining that even though the workman had been putting hardwork and the Company having been earning profits, the wage revision was stretched beyond the period of 27 months and therefore, he wrote the communications.

3.6. After receipt of the explanation, the Management and the Trade Union also entered into settlement on 01.08.2011 for the said year. It is in this background, the enquiry proceeded. On 05.11.2011, the Enquiry Officer returned his findings, holding the charges proved. The second show-cause notice was issued on 29.11.2011 and the reply was given on 09.12.2011. Being not satisfied with the explanation, the workman was dismissed from service on 24.12.2011. The workman raised dispute and upon failure of conciliation, the claim was taken on file as I.D.No.86 of 2012. The claim of the workman was that his actions never amounted to any misconduct.

3.7. He tried to justify the statements made by him in his letters by giving particulars. He submitted that the charges does not contain any misconduct and therefore, the findings in the domestic enquiry report is incorrect and the punishment is unjustified.

3.8. The same was resisted by the Management by stating that when the workman was an Office Bearer earlier in the Union, merely because he was not elected, with a malafide intention, these false allegations were raised, which resulted in disaffection among the workers and also lead to industrial unrest. It was prayed that the petition be dismissed.

3.9. On the said pleadings, enquiry was taken up by the Labour Court. No oral evidence was let in by both sides. On behalf of the workman, Exhibits W.1 to W.7 were marked and on behalf of the Management, Exhibits M.1 to M.37 were marked. The Labour Court considered the issue and held in favour of the workman that the allegations, per se, does not amount to misconduct and that the Enquiry Officer omitted to consider the background of the case that there was a delay in 27 months and therefore, the employee has voiced the dissent. The Labour Court further held that even if this is to be perceived as misconduct from the point of view of the Management, still, the imposition of punishment of dismissal from service is disproportionate and held that the backwages cut, to the

tune of 60%, would amount to an appropriate punishment and ordered that the workman be reinstated into service with 40% backwages and continuity of service.

3.10. Aggrieved over the said Labour Court award, the present writ petitions are filed.

4. Mr.P.Raghunathan, learned counsel appearing on behalf of the Management would make the following submissions:- (i) This is not a case where the fairness and proprietary of the Domestic Enquiry was even impugned. In that case, the scope of the Labour Court, under Section 11A of the Industrial Disputes Act, 1947, is very limited. If only the findings of the Domestic Enquiry are perverse in nature or without any evidence whatsoever, the Labour Court can answer that the charges are not proved. (ii) Secondly, the Labour Court cannot just like that use the word "disproportionate" and set aside the quantum of punishment. When the charges are relating to disaffection, defamation and

industrial unrest etc., it cannot be said that the punishment is shockingly disproportionate. In any event, the Labour Court ought not to have rendered its findings without even considering the findings of the Domestic Enquiry Officer, especially when the Domestic Enquiry Officer has given a 47-page report, giving his reasons in detail to hold that the charges as proved. (iii) Therefore, the Labour Court ought not to have ordered reinstatement. Alternatively, in the unlikely event of this Court rejecting his submissions with regard to reinstatement, this is not a case where the workman should be granted the relief of reinstatement with backwages, but however, ought to have been given only compensation. In this case, voluntarily, even before filing of the writ petition, to till date, a total sum of Rs.

20,46,000/- has so far been paid as wages month on month and therefore, that amount should be taken into consideration and by including that amount, any compensation must be determined by this Court. That amount itself should be held as a fair amount of compensation and no further relief should be granted to the workman.

(iv) The learned counsel would also rely upon the judgment of the Supreme Court of India in Talwara Co-operative Credit Society Limited vs. Sushil Kumar1 to contend that in this case also, the averment regarding non-employment is absent from the employee concerned.

(v) The learned counsel would also rely upon the judgment of the Supreme Court in the case of Ramesh Chand vs. Management of Delhi Transport Corporation2 for the very same proposition that only on the plea of the workman that he is not otherwise gainfully employed, the Court should consider granting of backwages, that too taking into consideration of the relevant circumstances of the case.

(vi) The learned counsel would also make his submissions regarding the judgment of the Supreme Court in the case of O.P. Bhandari vs. Indian Tourism Development Corpn. Ltd. And 1 2008 9 SCC 486 2 2023 SCC OnLine SC 776

Ors.3, wherein, it was a case of termination simplicitor by the State owned Organization and only in this context, the formula was given. Otherwise, this Court could consider different formula, including that in the nature of Voluntary Retirement from Service, to consider the total amount payable and this Court should also take into account the amount paid so far and deny any other relief to the workman.

5.1. Per contra, Mr.R.Rajaram, learned counsel appearing for the workman would submit that in this case, whatever the workman has done is only to raise a voice of dissent, that also pointing out to the very same authorities and not to any third parties. The action of the workman would not constitute misconduct at all. The Labour Court has correctly appreciated the issue and also has gone into the findings of the Domestic Enquiry Officer and has answered that the action of the workman would not amount to misconduct at all. 5.2. Merely because the Labour Court has reduced the 3 (1986) 4 SCC 337

backwages, that would not render the judgment redundant and as a matter of fact, the workman has filed W.P.No.10211 of 2017, challenging the portion of the Labour Court order denying 60% of the backwages. The wages that are paid so far is only in the nature of 17B wages. Therefore, he would submit that the writ petition filed by the Management may be dismissed and W.P.No.10211 of 2017 may be allowed.

6. I have considered the rival submissions made by either side and perused the materials records of this case. 7.1. At the outset, the letters written by the workman, the charges leveled against him and the certified Standing Order 19 were all extracted supra. I am fully in agreement with the findings of the Labour Court that except voicing his concerns and dissent in a straightforward manner to the President of the Company itself and to the Labour Officer, the workman has not resorted to any other action or vilification campaign, much less, any act of disaffection or industrial unrest. Therefore, I am of the opinion that the action of

the workman would not amount to any misconduct at all, considering Clause 19 of the certified Standing Orders. Therefore, the Labour Court was right in holding that there was no misconduct at all and therefore, it cannot be held that there were proven charges against the workman.

7.2. As far as the argument of both side learned counsel relating to denial of backwages and imposition of lower punishment is concerned, the Labour Court has only considered the fact that even if the dissent of the workman was taken in the perception of the Management that he has crossed the lakshman rekha, even then, the punishment of dismissal from service is quite shocking and disproportionate and even considering the said perception 60% backwages cut would be an appropriate punishment. 7.3. Considering the nature of the exercise of jurisdiction, being the Domestic Enquiry and industrial peace, such approach of the Labour Court, even though in law or in consideration of this Court, that the action of the workman does not amount to

misconduct at all, but still to consider the perception of the Management imposing a lesser punishment, cannot render the award illegal and I reject the contention of the learned counsel appearing for the workman in that regard.

7.4. Now, coming back to the final submissions made on behalf of the learned counsel for the Management that reinstatement would be impracticable and would only spoil the industrial peace, I am of the view that the term used in the Labour Jurisprudence is "Industrial Peace". "Peace" is where there is room for dissent and where the dissent, being heard and appropriately responded. By choking and shooting out the voice of dissent, what is achieved would not be "Peace" but only an "Eerie Silence". 7.5. Therefore, I cannot agree with Mr.P.Raghunathan that this is a case where in the interest of industrial peace, the workman should be denied the benefit of reinstatement with backwages. I am unable to agree with the submission made that only compensation should be given. I find that the monthly wages were given by the

Management by sending the following letter and the same is extracted hereunder:- 7.6. Therefore, it would be clear that the Management took upon itself that it is going to file a writ petition and therefore, thought that it has to pay the last drawn wage every month in view of the provisions under Section 17B of the Industrial Disputes Act,

1947, even though Section 17B was not specifically mentioned. That action of the Management is also to be appreciated. But, however, it cannot be stated that the said amount could be taken in lieu of compensation.

7.7. Further, I am of the view that this is a case where reinstatement has to be ordered with continuity of service, as this Court also agrees with the Labour Court, there was no misconduct on the part of the workman within the meaning of the certified Standing Orders. In view thereof, finding no merits, both these writ petitions stand dismissed. There shall be no order as to costs. Consequently, W.M.P.No.11163 of 2017 and M.P.No.1 of 2015 are closed.

13.12.2024 drm

To:

1. The Presiding Officer Labour Court, Salem.

D.BHARATHA CHAKRAVARTHY,J.

(drm) 13.12.2024