W.A. Nos. 1292/2022, 953/2022 & 1085/2022 (Bharat Petroleum Corporation Ltd vs P.N. Surendran Nair; Cochin Refinery Employees Association vs BPCL; CGIT)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **& THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 21[ST] DAY OF JULY 2023 / 30TH ASHADHA, 1945 WA NO. 1292 OF 2022** ## **AGAINST THE JUDGMENT WP(C) 30243/2021 OF HIGH COURT OF KERALA APPELLANT/S:** - 1 BHARAT PETROLEUM CORPORATION LTD - BHARAT BHAVAN 4 & 6, CURRIMBHOY ROAD, BALLARD ESTATE, P B NO. 688, MUMBAI, MAHARASHTRA- 400001, REPRESENTED BY THE CHAIRMAN/MANAGING DIRECTOR. - 2 BHARAT PETROLEUM CORPORATION LTD-KOCHI REFINERY, AMBALAMUGAL, ERNAKULAM -682 302, REPRESENTED BY THE CHIEF GENERAL MANAGER (OPERATIONS) I/C BY ADVS. - P.BENNY THOMAS D.PREM KAMATH TOM THOMAS (KAKKUZHIYIL) ABEL TOM BENNY KURIAN OOMMEN THERAKATH JAIKRISHNAN.M.PISHARODI ## **RESPONDENT/S:** - 1 P.N.SURENDRAN NAIR "ANIZHAM", HOUSE NO. 33/238, N-1, PUZHAKKARAPADAM LANE, VENNALA P.O., ERNAKULAM - 682028. - 2 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, KARITHALA LANE, KARSHAKA ROAD, ERNAKULAM, KOCHI- 682 016. BY ADV ELVIN PETER P.J.(K/000445/1990) (B/O) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2023, ALONG WITH WA.953/2022, 1085/2022, THE COURT ON 21.07.2023 DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **& THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 21[ST] DAY OF JULY 2023 / 30TH ASHADHA, 1945 WA NO. 953 OF 2022** ## **AGAINST THE JUDGMENT WP(C) 30243/2021 OF HIGH COURT OF KERALA APPELLANT/S:** P.N.SURENDRAN NAIR AGED 59 YEARS "ANIZHAM", HOUSE NO.33/238, N-1, PUZHAKKARAPADAM LANE, VENNALA P.O., ERNAKULAM - 682 028. BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S. ANU JOSEPH P.RAVINDRAN (SR.) ## **RESPONDENT/S:** - 1 BHARAT PETROLEUM CORPORATION LTD. BHARAT BHAVAN 4 AND 6, CURRIMBHOY ROAD, BALLARD ESTATE, P.B.NO.688 MUMBAI, MAHARASHTRA - 400 001, REPRESENTED BY THE CHAIRMAN/MANAGING DIRECTOR. - 2 BHARAT PETROLEUM CORPORATION LTD. KOCHI REFINERY, AMBALAMUGAL, ERNAKULAM - 682 302, REPRESENTED BY THE CHIEF GENERAL MANAGER (OPERATIONS) I/C. - 3 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT KARITHALA LANE, KARSHAKA ROAD, ERNAKULAM, KOCHI - 682 016. BY ADVS. P.BENNY THOMAS S.MANU D.PREM KAMATH TOM THOMAS (KAKKUZHIYIL) ABEL TOM BENNY KURIAN OOMMEN THERAKATH JAIKRISHNAN.M.PISHARODI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2023, ALONG WITH WA.1292/2022 AND CONNECTED CASES, THE COURT ON 21.07.2023 DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **& THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 21[ST] DAY OF JULY 2023 / 30TH ASHADHA, 1945 WA NO. 1085 OF 2022** ## **AGAINST THE JUDGMENT IN WP(C) 27781/2019 OF HIGH COURT OF KERALA APPELLANT/S:** THE GENERAL SECRETARY, COCHIN REFINERY EMPLOYEES ASSOCIATION, AMBALAMUGAL - 682 032. BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S. ANU JOSEPH ## **RESPONDENT/S:** - 1 BHARAT PETROLEUM CORPORATION LIMITED KOCHI REFINERY, AMBALAMUGAL, ERNAKULAM - 682 302, REPRESENTED BY ITS EXECUTIVE DIRECTOR (HR) SRI.JAYESH SHAH. - 2 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT KARITHALA LANE, KARASHAKA ROAD, ERNAKULAM, KOCHI - 682 016 (PRESENTLY SHIFTED TO 8TH FLOOR HOUSING BOARD BUILDING, PANAMPALLY NAGAR, ERNAKULAM, COCHIN - 682 036). BY ADVS. SRI.BENNY P. THOMAS (B/O) MANU S., ASG OF INDIA P.BENNY THOMAS D.PREM KAMATH(K/1285/1998) TOM THOMAS (KAKKUZHIYIL)(K/000821/2008) ABEL TOM BENNY(K/1381/2018) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2023, ALONG WITH WA.1292/2022 AND CONNECTED CASES, THE COURT ON 21.07.2023 DELIVERED THE FOLLOWING: # **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** **-----------------------------------------** **W.A.Nos.1292/2022, 953/2022 & 1085/2022** **-----------------------------------------** **Dated this the 21[st] day of July, 2023** **J U D G M E N T** ## A.Muhamed Mustaque, J. ## **W.A.Nos.1292/2022 & 953/2022:** These intra-court appeals arise out of challenge of an award passed by the Central Government Industrial Tribunalcum-Labour Court, (CGIT) Ernakulam in I.D.No. 2/2019 dated 1.9.2021. The dispute has a chequered history. The workman, namely, P.N.Surendran Nair was dismissed from service following an enquiry conducted by the Management, Bharat Petroleum Corporation Limited (BPCL). In the industrial dispute, CGIT refused approval of the punishment imposed by the management. In the challenge made before this Court, the learned Single Judge set aside the award of CGIT and remanded the matter back for fresh consideration. The Division Bench also affirmed the judgment of the learned Single Judge. Thereafter, CGIT reconsidered the matter and found that the findings of the disciplinary authority, regarding the charges against the workmen, were without any legal evidence and it was perverse. Accordingly, the management was given liberty to adduce evidence to prove the charges against the workman. The workman was also given the liberty to adduce evidence. Accordingly, both sides adduced evidence. According to CGIT, the only charge proved **W.A.Nos.1292/2022, 953/2022 & 1085/2022** ## **-:2:-** against the workman was the use of abusive language in an altercation between two or three employees. Finding guilt, a punishment to the extent of 25% cut in his backwages was imposed and an order was made to reinstate the workman with 75% backwages. The relevant findings of CGIT is as follows: _38. As already pointed out in the previous paras. the only charge that is proved on the basis of legal evidence is that there was some altercation by using abusive language between two or three employees near the dress changing room of the management company. The punishment of dismissal awarded by the management on the workman for the above misconduct is shockingly disproportionate to the charges proved against him. Hence the workman is entitled to be reinstated into the service of the management company. The management has no case that the workman was profitably employed during the period of dismissal. Hence the workman is entitled for reinstatement with back wages. However as already pointed out, a part of the charge regarding using abusive language against a co-worker is proved during these proceedings against the workman. Since the workman is retiring shortly interest of justice will be met if he is awarded a punishment of 25% cut in his back wages for the charges proved against the workman and also taking into account the antecedents elaborated by the management in this proceedings._ _Hence an Award is passed directing the management to reinstate the workman in service with 75% back wages with immediate effect._ 2. The management challenged the award in W.P. (C).No.30243/2021. The learned Single Judge who heard the matter was of the view that there was no scope for ## **W.A.Nos.1292/2022, 953/2022 & 1085/2022** ## **-:3:-** reinstatement as the discord between the management and the workman had been too deep and impacted the working of the management, accordingly, directed the management to pay compensation of Rs.25 lakhs, instead of reinstatement. As against the judgment of the learned Single Judge, the management filed W.A No.1292/2022 and the workman filed W.A No. 953/2022. 3. CGIT noted the three charges levelled against the workman by the management which are: _(i) Riotous or disorderly behaviour or act subversive to good discipline._ _(ii) Threatening, intimidating or coercing any other employee_ _(iii) Assault, either provoked or otherwise, making false acquisition, use of impolite or insulting language against any other employee._ 4. CGIT also noted the relevant clause in the certified standing order thus: _Clause 29(14) of the certified standing order reads as follows:_ _"Surrounding, blocking or detailing the company officers, supervisors, workmen or any other workmen either inside or outside the premises. This includes riotous or disorderly behavior or any act subversive to good discipline.”_ ## **W.A.Nos.1292/2022, 953/2022 & 1085/2022** ## **-:4:-** 5. CGIT also found that one of the charges was proved and imposed a punishment of 25% cut in the backwages. 6. We may not be able to interfere with the findings of fact unless such findings of fact, on the face of the record, are perverse and absurd. But there are two issues that are germane for consideration, one is payment of backwages when one of the charges was proved; and second, the past conduct of the workman; admittedly, he faced several disciplinary actions. These two aspects should have been factored while considering reinstatement and imposing punishment. It is settled law that a workman is not entitled to backwages as a matter of right. 7. In _**Rajasthan State Road Transport Corporation v. Phool Chand (**_ **AIR 2018 SC 4534)** the Hon’ble Supreme Court had held as follows: _Back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service._ ## **W.A.Nos.1292/2022, 953/2022 & 1085/2022** ## **-:5:-** 8. The management was able to prove one of the charges, the question regarding backwages ought to have been considered on sound principles of law. We are not saying that the workman was not entitled to backwages now ordered but CGIT ought to have applied its mind on the rationality to be followed, while ordering reinstatement with 75% of backwages. Absolutely, no reasons have been assigned. The second aspect we note is that when the management imposed the ultimate penalty of dismissal, in the event the Tribunal or the Labour Court for any reasons did not approve the ultimate punishment, it ought to have heard the management on the proposed penalty. Opportunity ought to have been given to both sides in regard to the penalty. The law regarding principles of natural justice do not end with transparent open proceedings in the labour law context but it also needs to reflect the authority of the management to impose any punishment commensurate with misconduct which may also have to refer to past conduct. What we want to reiterate and state is that when the original punishment is being altered, the management should have been given an ## **W.A.Nos.1292/2022, 953/2022 & 1085/2022** ## **-:6:-** opportunity to state their stand on the punishment. The past conduct also needs to be factored while imposing punishment. Aggravated misconduct is a relevant factor for imposing punishment. We find that there was no discussion, deliberation or consideration on this aspect by the CGIT. 9. We are not approving the punishment altered as compensation by the learned Single Judge. It is admitted at the Bar that the workman has already superannuated and he would be entitled to a higher payout than that fixed by the learned Single Judge if the order of CGIT is sustained. The legitimate entitlement, therefore, cannot be converted to a lesser compensation package to the detrimental interest of the workman. We, thus, set aside the impugned judgment as well as the award to the extent of the punishment imposed. We remand the matter back for reconsideration on the issue of punishment by the CGIT, after hearing both sides. The parties are directed to appear before CGIT on 1/8/2023. Thereafter, CGIT is directed to dispose of the matter after hearing both sides within six weeks thereon. W.A ## **W.A.Nos.1292/2022, 953/2022 & 1085/2022** ## **-:7:-** No.1292/2022 and W.A No. 953/2022 stand disposed of as above. ## **W.A.No.1085/2022:** 10. In an industrial dispute between the same workman who was meted out with the punishment of barring two increments in a separate charge, CGIT in ID No.27/2011 set aside the punishment of withholding two increments though it was found that the enquiry was fair and proper. Management questioned the award of the labour court in W.P(C).No.27781/2019. The learned Single Judge considered the challenge of the management along with the other writ petition filed, dealt in the aforenoted paragraphs and set aside the award of the CGIT holding that CGIT has no power under Section 11A of the Industrial Dispute Act, 1947, to alter punishment of withholding two annual increments with cumulative effect. The learned Single Judge referred to Section 11A of the ID Act and came to the conclusion that the power of the CGIT to alter punishment would arise when punishment was dismissal or discharge. **W.A.Nos.1292/2022, 953/2022 & 1085/2022** ## **-:8:-** 11. This is questioned in the writ appeal filed by the Union who espoused the cause of the workman. It is to be noted that CGIT found that the enquiry was proper and legal. In that event, CGIT could not have interfered with the punishment unless such a punishment is of the nature referred to in Section 11A. We find no merit in this appeal. W.A.No.1085/2022is, therefore, dismissed. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** **ms** **W.A.Nos.1292/2022, 953/2022 & 1085/2022** ## **-:9:-** ## **APPENDIX OF WA 953/2022** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|TRUE COPY OF THE COMPLAINT| ||DATED 16/10/2015 SUBMITTED BY| ||THE APPELLANT BEFORE THE DGM| ||OF THE COMPANY.| |Annexure A2|TRUE COPY OF THE CRIMINAL| ||COMPLAINT DATED 17/10/2015 FILED| ||BY THE APPELLANT BEFORE THE| ||AMBALAMEDU POLICE STATION.| |Annexure A3|TRUE COPY OF THE COMPLAINT| ||DATED NIL. FILED BY| ||SRI.SAJEEVKUMAR BEFORE THE C.I.| ||OF POLICE, TRIPUNITHURA.| |Annexure A4|TRUE COPY OF THE JUDGMENT| ||DATED 31/03/2022 IN WP(C)| ||NO.28964/2021 DISMISSING THE WRIT| ||PETITION AS NOT PRESSED.|