W.P.(C).No.4049/2012 (The President, Anickad Regional Farmer's Service Co-operative Bank Limited v. Benny Thomas Anchanickal and Industrial Tribunal, Peerumedu, Idukki)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ## **`TUESDAY, THE 30[TH] DAY OF AUGUST 2022 / 8TH BHADRA, 1944`** ## **`WP(C) NO. 4049 OF 2012`** ## **`AGAINST THE ORDER/JUDGMENT ID 23/2008 OF INDUSTRIAL TRIBUNAL, IDUKKI PETITIONER/S:`** - `1 THE PRESIDENT, ANICKAD REGIONAL FARMER'S SERVICE COOPERATIVE BANK LTD.NO.3867,PALLIKKATHODE,ANICKAD.P.O, KOTTAYAM.` - `2 THE SECRETARY ANICKAD REGIONAL FARMER'S SERVICE CO-OPERATIVE BANK LIMITED NO.3867,PALLIKKATHODE,ANICKAD.P.O,KOTTAYAM.` ``` BY ADVS. SRI.P.RAMAKRISHNAN SRI.LIJI.J.VADAKEDOM ``` ## **`RESPONDENTS:`** - `1 BENNY THOMAS ANCHANICKAL,ANICKAD.P.O,PALLIKKATHODE,ANICKAD.P.O,KOTTAYA M-656503.` - `2 INDUSTRIAL TRIBUNAL PEERUMEDU,IDUKKI-685531.` ``` BY ADVS. ``` ``` SRI.BINU PAUL SRI.SHAJI THOMAS SRI.SHINE MATHEWSVADAKKEKARA SRI.T.V.VINU G.P-SRI.C.N.PRABHAKARAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).No.4049/2012 2 ## **‘C.R’** ## **JUDGMENT** The petitioners are the President and the Secretary respectively of Anickad Regional Farmer's Service Co-operative Bank Limited (hereinafter referred to as 'Bank' for short), a Cooperative Society registered under the provisions of the Kerala Co-operative Societies Act, 1969, doing business of banking. The 1[st] respondent was appointed as a Peon in the Bank on 12.10.1993 under the dying-in-harness scheme. He was later promoted as Junior Clerk on 27.03.1999. 2.While working so, the 1[st] respondent was placed under suspension on 23.01.2006 alleging misconduct, pending enquiry. On 15.02.2006, he was served with a show cause notice to which he submitted his explanation denying the allegations. As his explanation was not satisfactory, he was served with a memo of charges on 16.03.2006 containing seven charges and the management decided to conduct a domestic enquiry. In the enquiry, the 1[st] respondent workman was found guilty of all charges. On the basis of the findings in W.P.(C).No.4049/2012 3 the enquiry, he was dismissed from service on 15.01.2007 with retrospective effect from the date of suspension viz., 19.11.2006. 3. The 1[st] respondent raised an industrial dispute against his dismissal and the dispute was referred to the Industrial Tribunal, Idukki ('Tribunal', for short) by the Government of Kerala for adjudication. 4. By Ext.P4 preliminary award, the Tribunal found that the charges leveled against the 1[st] respondent were supported by evidence available on record and there were no grounds to interfere with the domestic enquiry and posted the dispute for consideration of legality of punishment. 5. The Tribunal examined the legality of punishment and by Ext. P5 award found that the charges proved against the 1[st] respondent constitute only minor misconducts and the punishment imposed is too harsh, discriminatory, unreasonable and highly disproportionate to the degree of guilt proved. The Tribunal observed that the workman did not cause monetary or other loss to the management and there is no allegation of loss W.P.(C).No.4049/2012 4 of confidence against him. The Tribunal also held that the management has victimized the workman by giving extreme punishment of dismissal for proved minor misconducts and that the employer cannot impose punishment with retrospective effect. The Tribunal found that withholding of one annual increment with cumulative effect would be adequate and sufficient punishment for the 1[st] respondent. The Tribunal also found that the 1[st] respondent is entitled to be reinstated in service with 50% back wages from the date of suspension till reinstatement. Accordingly, the Tribunal set aside the order of the management dismissing the 1[st] respondent from service and remitted the punishment to that of withholding one annual increment with cumulative effect and ordered his reinstatement in service with 50% of the back wages from the date of suspension till reinstatement. 6. Ext. P5 award of the Tribunal is impugned in the writ petition contending that the Tribunal, exercising powers under Section 11-A of the Industrial Disputes Act, 1947 (the 'Act' for short), cannot reappraise evidence. It is contended that, the W.P.(C).No.4049/2012 5 Tribunal, having found in Ext.P4 preliminary award that the enquiry is supported by evidence on record, cannot reappraise evidence when considering the question of legality of punishment. It is also contended that the question of punishment is for the management to decide. It is further contended that the Tribunal did not appreciate the finding of the enquiry officer that the 1[st] respondent is guilty of indiscipline and acted against the confidence reposed in him by the Bank. According to the petitioners, the punishment of dismissal imposed on the 1[st] respondent is commensurate with the charges levelled and proved against him and the Tribunal ought not to have interfered with the punishment. 7.The 1[st] respondent has filed a counter affidavit contending, _inter alia,_ that the entire disciplinary proceedings initiated against him is vitiated by victimization and unfair labour practices and that there are no manifest errors or patent illegalities in Ext. P5 award warranting interference of this Court. 8.Heard Sri. P. Ramakrishnan, the learned counsel for the W.P.(C).No.4049/2012 6 petitioners and Sri. Shaji Thomas, the learned counsel for the 1[st] respondent and Sri.C.N. Prabhakaran, the learned Government Pleader for the 2[nd] respondent. 9. Sri. P. Ramakrishnan, the learned counsel for the petitioners, relied on the following decisions in support of his contentions.(i) **Eastern Electric Trading Company** _**v**_ **Baldev Lal [1975 KHC 838: AIR 1975 SC 1892:1975-II L.L.J.367]** , (ii) **Regional Manager, UPSRTC Etawah and others** _**v**_ **.Hoti Lal and another [(2003) 3 SCC 605]** ,(iii) **Bharat Forge Co. Ltd** _**v**_ **.Uttam Manohar Nakate [2005 KHC 416: (2005)2 SCC 489]** , (iv) **State Bank of India and another** _**v**_ **. Bela Bagchi and others [(2005) 7 SCC 435]** , (v) **Mahindra and Mahindra Ltd** _**v**_ **. N.B. Narawade [2005 (2) KLT 32 (SC)]** ,(vi) **M.P. Electricity Board** _**v**_ **. Jagdish Chandra Sharma [(2005) 3 SCC 401]** ,(vii) **State Bank of India** _**v**_ **. Ramesh Dinkar Punde [(2006) 7 SCC 212]** , (viii) **LIC of India** _**v**_ **. R. Dhandapani][(2006)13 SCC 613]** , (ix) **Jomy Xavier** _**v**_ **. B.Rajagopal (judgment dated 28.11.2008 in W.P. (c) No.5522 and 21226 of 2004)** . W.P.(C).No.4049/2012 7 10. Sri. P. Ramakrishnan placed reliance on the decision of the Apex Court in **Eastern Electric Trading Company** (supra) to contend that the view of the Tribunal that the penalty is not in tune with the proved misconduct and the management has victimized the workman by giving extreme punishment of dismissal, is erroneous. The Apex Court in the decision cited held as under: “4. The question of punishment is essentially one for the management to decide. In Workmen v. Firestone Tyre and Rubber Co., 1973 (3) SCR 587 : AIR 1973 SC 1227 : 1973 Lab IC 851 this Court elaborately considered the various decisions of this Court regarding the principles governing the jurisdiction of the Tribunal when adjudicating disputes regarding dismissal and discharge. From those decisions they deduced ten broad principles of which the ninth is: "(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation". We cannot certainly agree that in this case the punishment was so harsh as to suggest victimisation. 5. In Hind Construction and Engineering Co. Ltd. v. Their W.P.(C).No.4049/2012 8 Workmen, (1965 (1) Lab LJ 462): AIR 1965 SC 917) this Court observed: "It is now settled law that the Tribunal is not to examine the finding or the quantum of punishment because the whole of the dispute is not really open before the tribunal as it is ordinarily before a Court of appeal. The tribunal's powers have been stated by this Court in a large number of cases and it has been ruled that the tribunal can only interfere if the conduct of the employer shows lack of bona fides or victimisation or employee or employees or unfair labour practice. The Tribunal may in a strong case interfere with the basic error on a point of fact or a perverse finding, but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to punishment for misconduct under the standing orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed, the tribunal should not interfere. The tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe, But where the punishment is shockingly disproportionate, regard being had to the particular W.P.(C).No.4049/2012 9 conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing, victimization or unfair labour practice." We do not consider that the punishment is shockingly disproportionate.” ## 11. The decision in **Regional Manager, UPSRTC Etawah** (supra) has been relied on by Sri. Ramakrishnan to contend for the position that the Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with the proved charges and that a mere statement that it is disproportionate would not suffice. Relying on the said decision, the learned counsel would also contend that if the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. The Apex Court held as under: “10. It needs to be emphasized that the Court or Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with W.P.(C).No.4049/2012 10 the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. (See Alexander Machinery Dudley Ltd. v. Crabtree (1974 LCR 120). A mere statement that it is disproportionate would not suffice. A party appearing before a Court, as to what it is that the Court is addressing its mind. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision - making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, W.P.(C).No.4049/2012 11 highest degree of integrity and trust - worthiness is must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned Single Judge upholding order of dismissal.” 12. Sri. Ramakrishnan invited my attention to the decision in **Bharat Forge Co. Ltd** (supra) to canvas the proposition that Industrial Tribunal shall not sit in appeal over the decision of the employer unless there exists a statutory provision in that behalf and the jurisdiction shall be exercised only in terms of the provisions of the statute. The relevant portion of the decision reads as under: “30. Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four corners thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other. 31. If the punishment is harsh, albeit a lesser W.P.(C).No.4049/2012 12 punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground.'' 13.To attack the finding of the Tribunal that the workman did not cause monetary loss to the management and that there is no allegation of loss of confidence against him, as a ground to interfere with the punishment, Sri. Ramakrishnan relied on the decision of the Hon'ble Supreme Court in **Bela Bagchi** (supra), paragraph 15 whereof reads as follows: “15. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority cum Regional Manager v. Nikunja Bihari Patnaik (1996 (9) SCC 69 : 1996 SCC (L&S) 1194), it is no defence available to say that there was no loss or profit which resulted in W.P.(C).No.4049/2012 13 the case, when the officer/employee acted without authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance.” 14. With regard to the area of discretion that can be exercised by Industrial Tribunals under Section 11-A of the Act, where the Tribunal found that the workman had used abusive and filthy language against superior officer, but interfered with the punishment of dismissal, the Apex Court in **Mahindra and Mahindra Ltd** (supra) held that the discretion which can be exercised under S.11A is available only on the existence of factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which requires the reduction of the sentence. Sri. Ramakrishnan refers to paragraph 22 of the decision which reads as under: W.P.(C).No.4049/2012 14 “22. It is no doubt true that after introduction of S.11A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under S.11A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court can not by way of sympathy alone exercise the power under S.11A of the Act and reduce the punishment. As noticed herein above atleast in two of the cases cited before us, i.e. Orissa Cement Ltd. (supra) and New Shorrock Mills (supra), this Court held: "punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman W.P.(C).No.4049/2012 15 was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to herein above.” 15. With regard to the scope of interference by the Labour Court under Section 11-A of the Act with order of punishment of dismissal, Sri. Ramakrishnan relied on the decision in **Jagdish Chandra Sharma** (supra) wherein the Apex Court after referring to **Bharat Forge Co. Ltd** (supra) and **Mahindra and Mahindra Ltd** (supra), held as under: “8. The question then is, whether the interference with the punishment by the Labour Court was justified? In other words, the question is whether the punishment imposed was so harsh or so disproportionate to the charge proved, that it warranted or justified interference by the Labour Court? Here, it had been clearly found that the employee during work, had hit his superior officer with a tension screw on his back and on his nose leaving him with a bleeding and broken nose. It has W.P.(C).No.4049/2012 16 also been found that this incident was followed by the unauthorized absence of the employee. It is in the context of these charges found established that the punishment of termination was imposed on the employee. The jurisdiction under S.11A of the Act to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Art.226 of the Constitution of India only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. These aspects are well settled. In U. P. State Road Transport Corporation v. Subhash Chandra Sharma and Others (AIR 2000 SC 1163) this Court, after referring to the scope of interference with punishment under S.11A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived that the punishment was shockingly disproportionate to the nature of the charge found proved, before it could W.P.(C).No.4049/2012 17 interfere to reduce the punishment. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Another (2004 (8) SCC 200) this Court after referring to the decision in State of Rajasthan v. B. K. Meena (AIR 1997 SC 13) also pointed out the difference between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis a vis the establishment, interference with punishment of dismissal could not be justified. In Bharat Forge Company Ltd. v. Uttam Manohar Nakate (2005 (1) SCALE 345), this Court again reiterated that the jurisdiction to interfere with the punishment should be exercised only when the punishment is shockingly disproportionate and that each case had to be decided on its facts. This Court also indicated that the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and W.P.(C).No.4049/2012 18 Mahindra Ltd. v. N. B. Narawade (2005 (2) KLT 32 : 2005 (2) SCALE 302. This Court summed up the position thus: "It is no doubt true that after introduction of S.11A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under S.11A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment." It may also be noticed that in Orissa Cement Ltd. v. V. Adikanda Sahu (1960 (1) LLJ 518 (SC)) and in New Shorrock Mills v. Maheshbhai T. Rao (AIR 1997 SC 252), W.P.(C).No.4049/2012 19 this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated "punishment of dismissal for using abusive language cannot be held to be disproportionate". If that be the position regarding verbal assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Employers, Management, Muriadih Colliery BCCL Ltd. v. Bihar Colliery Kamgar Union, Through Workmen (JT 2005 (2) SC 444) this Court after referring to and quoting the relevant passages from Management of Krishnakali Tea Estate v. Akhil Bharatiya Chah Madzoor Sangh and Another (2004 (8) SCC 200) and The Management of Tournamulla Estate v. Workmen (AIR 1973 SC 2344) held : "The Courts below by condoning an act of physical violence have undermined the discipline in the organization, hence, in the above tactual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under S.11(A) of the Act to interfere with the punishment of dismissal." 16. Inviting my attention to the high standards of honesty and integrity a bank officer is required to exercise, Sri. Ramakrishnan relied on the decision of the Apex Court in W.P.(C).No.4049/2012 20 ## **Ramesh Dinkar Punde** (supra) wherein the Court held as ## under: “21. Confronted with the facts and the position of law, learned counsel for the respondent submitted that leniency may be shown to the respondent having regard to long years of service rendered by the respondent to the Bank. We are unable to countenance such submission. As already said, the respondent being a bank officer holds a position of trust where honesty and integrity are inbuilt requirements of functioning and it would not be proper to deal with the matter leniently. The respondent was a Manager of the Bank and it needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer so that the confidence of the public / depositors is not impaired. It is for this reason that when a bank officer commits misconduct, as in the present case, for his personal ends and against the interest of the bank and the depositors, he must be dealt with iron hands and he does not deserve to be dealt with leniently.” 17.The decision of the Hon'ble Supreme Court in **R. Dhandapani** (supra) has been relied on by Sri. Ramakrishnan W.P.(C).No.4049/2012 21 to contend that the decision of the management can be interfered with by the Industrial Tribunal under S.11A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned. The Apex Court held as under: '7. It is not necessary to go into in detail regarding the power exercisable under S.11A of the Act. The power under said S.11A has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under S.11A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned. To support its conclusion the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision. The power has to be exercised judiciously and mere use of the words 'disproportionate' or 'grossly disproportionate' by itself will not be sufficient. 8. In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable, tendency towards a denudation of the W.P.(C).No.4049/2012 22 legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. (See: Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and another (1994 (1) SCALE 631)). 9. Though under S.11A, the Tribunal has the power to reduce the quantum of punishment it has to be done within the parameters of law. Possession of power is itself not sufficient; it has to be exercised in accordance with law.” 18. The learned counsel for the petitioners then relied on the judgment of this Court in **Jomy Xavier** _**v**_ **. B.Rajagopal** (supra) wherein the Court while interfering with the order of the W.P.(C).No.4049/2012 23 Industrial Tribunal under Section 11-A of the Act held that the imposition of punishment on a delinquent workman is a managerial function with which the Tribunal and this Court can interfere only if the punishment is shockingly disproportionate to the gravity of misconduct. 19. Per contra, Sri. Shaji Thomas, the learned counsel for the 1[st] respondent would contend that the Tribunal has rightly exercised jurisdiction under Section 11-A of the Act and that this Court can interfere with the exercise of powers of the Tribunal under Section 11-A only when the Tribunal arrives at a conclusion which is patently perverse or one which no man in his senses would arrive at. The learned counsel also submits that the award of the Tribunal shall not be interfered with by the High Court on the ground that another view is possible on the material on record. Sri. Shaji Thomas relied on the decision of the Apex Court in **Deepali Gundu Surwase** _**v**_ **. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and others [2013 KHC 4982: (2013) 10 SCC 324]** and the Division Bench decision of this Court in **David T.K.** _**v**_ **. Kuruppumpady Service Co-** W.P.(C).No.4049/2012 24 ## **operative Bank and others [2015 (2) KHC 301]** in support ## of his contentions. ## 20. In **Deepali Gundu Surwase** (supra), the Apex Court held as under: “38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of W.P.(C).No.4049/2012 25 the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position W.P.(C).No.4049/2012 26 vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame...” 21. Sri Shaji referred to paragraph 4 of the decision in **Kuruppumpady Service Co-operative Bank** (supra) which reads as follows: “4. The proposition that can be deduced from the law laid and settled by the Apex Court is that the scope and extent of interference with the factual findings of the Tribunal are exceptionally limited. The jurisdiction of the High Court in a writ petition filed under Art.226 and Art.227 of the Constitution of India challenging the findings of a Tribunal is supervisory and not appellate. Unless the High Court finds that there are manifest errors or that the findings are patently unreasonable or tainted with perversity, the writ jurisdiction would not be invoked to unsettle such factual findings. Where the Tribunal exercises a discretion giving valid reason, no interference is called for. Even if another view is possible, interference under the writ jurisdiction is not justified, unless the decision impugned is palpably perverse or patently unreasonable, as wholly unavailable on record, or in direct conflict with settled principle of law. If the W.P.(C).No.4049/2012 27 High Court comes to a conclusion that the Tribunal has committed manifest error by misconstruing certain documents or the materials on record to such an extent to which a reasonably prudent person could not have come to the conclusions reached by the Tribunal or that the Tribunal has ignored the relevant materials or had taken into consideration any inadmissible material, the High Court would be justified in interfering with the findings of the Tribunal.” 22.The impugned order is one passed by the Industrial Tribunal exercising powers under Section 11-A of the Act. Section11-A of the Act reads as follows: '11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfed that the order of discharge or dismissal was not justifed, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks ft, or give such other relief to the workman including W.P.(C).No.4049/2012 28 the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not ' take any fresh evidence in relation to the matter. _(emphasis supplied)_ The Tribunal has wide powers under Section 11-A to set aside the order of discharge or dismissal and direct reinstatement of workman, on such terms and conditions, if any, as it thinks fit. Even if the enquiry proceedings are held to be proper and the finding of misconduct is also accepted, the Tribunal has power under Section 11-A to consider whether the punishment of dismissal or discharge was necessary for the type of misconduct of which the workman is found guilty. In such circumstances, the Tribunal can also give any other relief to the workman, including the imposition of a lesser punishment. However, the proviso to Section 11-A casts a duty on the Tribunal to rely only on the materials on record and prohibits it from taking any fresh evidence. This Court in **Kerala Chemicals and Proteins Ltd** W.P.(C).No.4049/2012 29 _**v**_ **. Labour Court, Ernakulam [2014 (4) KHC 107]** , relying on the decision of the Apex Court in **Workmen of M/s. Firestone** _**v**_ **. Tyre and Rubber Co. of India (P) Ltd. and Others Management and Others, [1973 KHC 516: 1973 (1) SCC** **813: AIR 1973 SC 1227]** , has held that, the Labour Court has the power for reappraisal of the evidence and that, the High Court exercising power under Article 226 of Constitution does not have a similar power of reappraisal of the entire evidence. 23. The Division Bench of this Court in **Rajagopal B.** _**v**_ **. Jomy Xavier and another [2010 (2) KHC 196: ILR 2010 (2) Ker. 117: 2010 (3) KLT SN 4: 2010 (2) KLJ 191]** on a detailed consideration of the legislative history and the objects behind the introduction of Section 11-A of the Act observed that, after the introduction of Section 11-A, the Industrial Tribunal has got wider powers to deal with the case of dismissal of a workman and the Tribunal has power to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, it thinks fit. The Division Bench considered the powers of the High Court while W.P.(C).No.4049/2012 30 ## judicially reviewing the decision of a Labour Court or an Industrial Tribunal and held as under: “7.....It is also equally settled that the High Court cannot act as an appellate authority over the decisions of the Labour Courts/Industrial Tribunals. If the decision is within jurisdiction, it is no part of the business of this Court to interfere with the decision of the Labour Court/Tribunal according to its opinion, regarding the propriety of the punishment. There is no dispute that broadly, the Labour Court/Tribunal has jurisdiction to adjudicate a dispute concerning the dismissal of a workman. But, while exercising that power, the Tribunal may stray out of jurisdiction, if it follows a procedure, contrary to fundamental judicial principles, like violation of the principles of natural justice, or if it omits to take into account relevant matters or takes into account irrelevant matters or misdirects itself in law. Even if after following a proper procedure, the Tribunal arrives at a conclusion which is patently perverse or one which no man in his senses would arrive at, then also it can be described that the Tribunal has strayed out of jurisdiction because the courts would say, the Parliament cannot be intended to have conferred power on the Tribunal to arrive at such a perverse decision. It is also well settled in law that a difference of opinion or a different view was possible on the facts of the case, is also not a ground for this Court to interfere with the decision of an inferior tribunal. Lord Hailsham of St.Marylebone L.C. In re W. (An infant) (1971) A.C.682) put W.P.(C).No.4049/2012 31 it felicitously that two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts, without forfeiting their title to be regarded as reasonable. The above principle has been followed by the Apex Court in several decisions. So, in this case, the point to be considered is whether, based on the proven misconduct, if the Tribunal takes the view that the punishment was disproportionate to the gravity of the offence; so, the punishment of dismissal was not warranted and denial of back wages alone would be sufficient, can it be said to be a decision outside jurisdiction or whether it can be described as one which no man in his senses would take. We think, it is difficult to condemn the decision of the Tribunal in that manner. A plausible view has been taken on the facts. If we were acting as the original authority, we might have taken a different view, but that will not enable this Court to interfere with the decision of the Industrial Tribunal.” The Division Bench in **Rajagopal B** (supra), while reversing the judgment in **Jomy Xavier** _**v**_ **. B.Rajagopal** (supra), after referring to various decisions of the Apex Court, including some of the decisions cited supra, held that, if the Tribunal takes the view that the punishment is grossly disproportionate to the gravity of the misconduct proved, this Court can interfere with the decision of the Tribunal, only if the view of the Tribunal is W.P.(C).No.4049/2012 32 patently perverse or one which no man in his senses would take. 24.Of the various authorities cited above, **Mahindra and Mahindra Ltd** , **Jagdish Chandra Sharma** , **R. Dhandapani** , **Deepali Gundu Surwase** , **Jomy Xavier, Rajagopal B** and **Kerala Chemicals and Proteins Ltd,** deal with the exercise of powers by the Industrial Tribunals and Labour Courts under Section 11-A of the Act and the powers of the High Court over the decision of the Industrial Tribunals and Labour Courts exercising powers under Section 11-A. The principles that can be deduced from the above decisions cited are summarised as follows: - (1) The Industrial Tribunal or Labour Court can interfere with the punishment, only if it is shockingly disproportionate to the gravity of the misconduct proved. - (2) To support its decision, the Industrial Tribunal or Labour Court has to give reasons. - (3) The Industrial Tribunal or Labour Court has the power for reappraisal of the materials on record under Section W.P.(C).No.4049/2012 33 ## 11-A. (4) This Court, exercising power under Art.226 of Constitution, does not have power for reappraisal of materials on record. (5) This Court cannot act as an appellate Court over the decision of the Industrial Tribunal exercising powers under Section 11-A. (6) This Court can interfere with the decision of the Tribunal, only if the view of the Tribunal is patently perverse or one which no man in his senses would take. 25. Tested on the touchstone of the above principles, and the provisions of Section 11-A of the Act, Ext. P5 award of the Industrial Tribunal cannot be said to be vitiated. While passing Ext. P5 award, the Tribunal has not placed reliance on any materials which are not on record and no fresh evidence in relation to the matter has been taken. The Tribunal, on reappraisal of the materials on record, found that the punishment is shockingly disproportionate to the gravity of the misconduct proved. To support its decision, the Tribunal has given reasons in the award. The decision of the Tribunal that the punishment of dismissal is highly disproportionate to the guilt W.P.(C).No.4049/2012 34 proved cannot be said to be patently perverse or one which no man in his senses would take. Therefore, Ext. P5 award cannot be unsettled, invoking the power of this Court under Article 226 of the Constitution of India. The writ petition fails and is, accordingly, dismissed. There will be no order as to costs. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` W.P.(C).No.4049/2012 35 ## **`A PPENDIX OF WP(C) 4049/2012`** ``` EXT.P1:TRUE COPY OF ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER BINO I TOM. ``` ``` EXT.P2:TRUE COPY OF CLAIM STATEMENT FILED BY THE 1ST RESPONDENT. ``` ``` EXT.P3:TRUE COPY OF WRITTEN STATEMENT FILED BY THE PETITIONERS. EXT.P4:TRUE COPY OF PRELIMINARY AWARD DATED 19.09.2011 PASSED BY THE 2ND RESPONDENT. ``` ``` EXT.P5:TRUE COPY OF AWARD DATED 24.11.2011 PASSED BY THE 2ND RESPONDENT. ``` ## `RESPONDENTS’ EXHIBITS:` ``` EXT R1 ATRUEPHOTOCOPYOFTHEG.O.(RT) NO.515/2005/CO.OP DATED 02/09/2005. EXT R1 BTRUE PHOTOCOPY OF THE COMPLAINT DATED 23/01/2006 OF SHRI.SABU.M.M AND HIS DEPOSITION DATED 29/04/2006 BEFORE THE ENQUIRY OFFICER. EXT R1 CTRUE PHOTOCOPY OF THE MASS PETITION DATED NIL SUBMITTED TO THE 1ST PETITIONER. EXT R1 DTRUE COPIES OF THE DEPOSITIONS DATED 17/06/2006 OF SHRI.V.P.RAMACHANDRAN NAIR (MW6) AND SHRI.ANISH.S (MW5). EXT R1 ETRUE PHOTOCOPY OF THE COMPLAINT DATED 21/01/2006 ALONG WITH THE DEPOSITION DATED 24/05/2006 OF SMT.MAYAKUMARI. EXT R1 FTRUE PHOTOCOPY OF THE NOTARISED AFFIDAVIT DATED23/01/2007OFSHRI.AYYAKUTTY CHETTIYAR.T.KSUBMITTEDBEFORETHE DISCIPLINARY SUBCOMMITTEE. EXT R1(g)TRUE COPY OF THE CHARGE SHEET DATED 16/03/2006 ISSUED BY THE PRESIDENT OF THE PETITIONERS- SOCIETY. ``` spc/