A. KULASEKARAN, J. - (1.) THIS writ petition has been filed seeking for writ of certiorari to call for the records of the first respondent in its award in I. D. No. 255 of 1992, dated August 28, 1995 and to quash same.
(2.) THE short fact involved in the writ petition is that the 2nd respondent was employed in the petitioner mill as Piecer in the spinning department. In respect of bonus issues the workers went on a strike with effect from September 27, 1990. According to the petitioner, the 2nd respondent was one of those workers who not only participated in the strike but also prevented other workers from attending to their work. On September 27, 1990, during evening hours one workman by name Kaliappan while returning home after his official work was threatened by the 2nd respondent not to attend mill next day. However, Kaliappan came to the mill as usual on the next day morning i. e. , on September 28, 1990 along with one office staff Palanisamy, quality control clerk, Pandmanabhan and he was obstructed and threatened by the 2nd respondent. Consequently the said Kaliappan returned home without attending the job. Kaliappan gave complaint to the management. The management has issued a show cause notice on February 8, 1991 calling upon the 2nd respondent to submit his explanation. The explanation submitted by the 2nd respondent was found not satisfactory, the management has appointed an enquiry officer. Four witnesses were examined in support of the charges by the management and ultimately the enquiry officer found the charges were proved. After affording opportunity to the 2nd respondent, the management has dismissed him from service with effect from September 18, 1991. Aggrieved by the said order of dismissal the 2nd respondent raised an Industrial Dispute in i. D. No. 255 of 1993 before the first respondent which has ordered for reinstatement with continuity of services along with 50% of back wages. Aggrieved by the order passed by the labour Court, the present writ petition has been filed by the petitioner management. Heard the learned counsel appearing for both sides. Learned counsel for the petitioner argued that the Labour Court passed the award on the erroneous ground of delay in issuing the charge memo as the incident took place on september 28, 1990 and the charges were framed on February 8, 1991, that the entire approach of the Labour Court was perverse and erroneous as it has held that September 28, 1990 was a holiday on account of Ayudha Pooja day and hence the charge against the 2nd respondent that he prevented other workmen from doing duty is untenable, that the Labour court erred in coming to the conclusion that there was an attempt on the part of the management to victimise the 2nd respondent, that it is well settled that the question of victimisation would not arise when the charges are proved and that it is the duty of Labour court to look into whether the charges against the workmen was proved or not but in the instant case, the Labour Court not even referred to or discussed the report of the enquiry officer. Learned counsel for the 2nd respondent has canvassed that the Labour Court is right in holding that there was an unexplained delay of 3 months and 10 days in issuing the charges which would show that there was no proof for the allegations, that the charge sheet was issued only to the 2nd respondent as a measure of victimisation, that the Labour Court after careful consideration of evidence rightly disbelieved the case of the management that the said Kaliappan was threatened by the 2nd respondent, that the labour Court rightly held that the strike arising out of pension issue was amicably settled as such the action of the management to proceed against the 2nd respondent is unjustified, that the Labour court rightly held that August 28, 1990 being ayudha Pooja holiday the charge that the 2nd respondent prevented Kaliappan and others from entering into the mill is unbelievable, that in respect of the 2nd charge sheet dated July 3, 1991 the Labour Court rightly pointed out that the 2nd respondent to defend himself against the allegation made in the first chargesheet had to put some questions in the course of cross- examination as such it would not amount to any misconduct, that the Labour Court has rightly come to the conclusion that the allegations in the 2nd charge sheet were not proved and that in order to victimise the 2nd respondent the charges were framed against him. Learned counsel for the 2nd respondent further argued that against the factual finding of the Labour Court, this Court cannot reappraise the entire materials under article 226 of the Constitution. Learned counsel for the petitioner relied on the following decisions in support of their case:1) Thirum Co-operative Urban bank Limited v Assistant Commissioner of labour, Madras,. and another, 1992-II-LLJ-886 (Mad), wherein in para Nos. 6 and 7, it has been held thus at p. 888 of LLJ: ".6. . . . . THE stock reason for disbelieving the witness seems to be that the witnesses did not report the matter to the police authorities. This is hardly a reason of rejecting the cogent and clear evidence of the management witnesses. Two independent witnesses had also been examined to prove the charges, but the first respondent observes that inspite of the fact that a crowd had gathered outside the bank premises, no independent witnesses had been examined. I am, therefore, of the view that the reassessment of evidence made by the first respondent was clearly perverse and contrary to what a reasonable person will say about the deposition of witnesses. While i agree with the learned counsel for the second respondent that a reassessment of the evidence is certainly permissible in an appeal under Sec. 41 of the Act, I am clearly of the opinion that the reassessment must be on a proper basis and cannot be whimsical or arbitrary. . . . " ". 7. There is one other serious irregularity in the order of the first respondent to which i have already made a reference. A perusal of the charges would clearly show that the consumption of liquor was not the only charge against the second respondent. His behaviour in the bank premises attracting the attention of the public was also the subject matter of the charges. Inasmuch as the first respondent says that the act of the 2nd respondent in vomitting in the bank premises, in being in a state of undress and in using indecent words would not amount to consumption of liquor, the conclusion is irresistible that the first respondent did not find the second respondent guilty of the above acts of misconducts would by themselves be sufficient to hold the second respondent guilty of the charges. " (2) K. Jayaraman v. Superintendent of police, Erode and another, 1991-I-LLJ-5 (Mad-DB) wherein in para 17 it has been held thus at p. p. 10 and 11:"therefore, it must be remembered that a court will be loath to prevent trial of persons against whom grave charges are framed and to get themselves exonerated without undergoing the trial, by merely pointing out the date of alleged occurrence and the date of framing charge sheet. Unless law is made prescribing a period of limitation, as far as crimes and charges of quasi-criminal nature are concerned, it would be doing injustice to society, if Article 221 of the Constitution is to be misapplied by presuming that witnesses of the accused/delinquents would not be able to remember because of lapse of certain number of years. Therefore, the delay by itself would not be a ground to quash the charges unless it is shown that, after the completion of the proceedings, it has turned out to be a factor which had deprived the right of defence. " (3) Sri Gopalakrishnan Mills Private limited v. Labour Court and another, it has been held thus:"in this case we are of the view that none of the reasons given by the Labour Court is tenable. Having regard to the fact that the misconduct is a serious misconduct the punishment of dismissal from service cannot be said to be disproportionate as has been held by the Labour Court. The Labour court itself finds that if the second respondent's past conduct is to be taken into account, the order of dismissal may be justified. But the Labour Court has not said as to why the management cannot take into consideration the second respondent's past conduct. As a matter of fact it is not disputed that the standing orders of the petitioner management specifically provided that the management can take note of the past conduct while awarding a punishment for any misconduct. If such a serious misconduct on the part of the second respondent is to be taken lightly and he is reinstated as has been done by the Labour court, it will seriously undermine the discipline in the establishment and the management cannot exercise its disciplinary control over its work force in an effective manner. The second respondent caused stoppage of work in the mill for two shifts by his misconduct. Such a misconduct has to be taken to be a serious one and cannot be lightly brushed aside on the ground that he is a victim of circumstances. "
(3.) THE learned counsel appearing for the 2nd respondent relied on the following decisions:1) Coimbatore and Periyar District d. P. T. M. S. v. Management of Pioneer Mills, 2001-II-LLJ-1296 (Mad), wherein it has been held thus at p. 1299:".10. Discrimination: The main submission of the learned counsel for the appellant is that with regard to the first charge-sheet dated October 18, 1979 and findings on that basis, 11 out of 9 workmen were taken back. In reference to the second charge sheet dated December 4, 1979 wherein two workmen namely R. Damodaran and kulandaiswamy were involved, kulandaiswamy was let off with a minor punishment of suspension. The management having reinstated 9 workers involved in the first charge sheet, the other except Damodaran having abandoned his claim and in reference to the second charge sheet, the other worker having been given a lesser punishment, the management is not justified in dismissing R. Damodaran alone and therefore, it is a case of clear discrimination. ".15. For the above reasons and in the circumstances, we find that the dismissal of r. Damodaran is not justifiable, we are therefore inclined to remit the matter back to the Labour Court to consider the appropriate relief under Section 11-A of the act. But, however, in the light of the fact that 21 years have gone by from the date of the occurrence and that several proceedings, namely civil and criminal, have taken as much of time, taking away what little energy and sustenance the worker has got, and that the workman was left with only few months of service, it will not be proper to allow the matter against to go back for a second round of litigation to consider his appropriate relief and his gainful employment etc. . . . . " (2) G. Jayaraman v. Chief General manager, State Bank of India, 2001 (2) L. L. N. 460, wherein it has been held thus: "it is now well-settled by the authoritative pronouncements of this Court as also the apex Court as pointed out by the learned single Judge himself that the Parliament by enacting Section 11-A of the Industrial disputes Act had advisedly left individual discretion in the Labour Court or the tribunal to go into the quantum of punishment imposed by the management and that unless there was any perverse or shockingly unreasonable view which no reasonable person with an obligation to judiciously determine a question would have come to has been shown or found to have been taken in any case the powers under article 226 of the Constitution of India ought not to be exercised as a matter of course as if such Court is exercising an appellate jurisdiction over the adjudication made by the Tribunal or the Labour Court or the discretion exercised by the said fora. As the catena of cases cited on either side would otherwise go to show that ultimately the question would be one mainly depending upon the fact situation of a particular case particularly when the issue was with reference to the justification or otherwise or the reasonableness or otherwise of punishment imposed qua the nature of the charge held proved as also the attendant circumstances and past record of the worker concerned and not merely on account of the proof of the charge alone. " (3) The Management of TAFE v. R. Venkataraman, 1990-II-LLJ-468 (Mad) wherein it has been held thus at p. 469 of LLJ:".3. The well accepted principle on the question of exercise of powers under section 11-A of the Industrial Disputes Act, 1947, hereinafter referred to as the Act, to evaluate the gravity of misconduct for the purpose of the punishment to be imposed on a workman is, that once that power has been exercised, this Court under Article 226 of the Constitution of India, in the absence of any important legal principle, should not undertake to re-examine the question of adequacy or inadequacy of the materials for interference by Labour Courts. " Before the Labour Court the management alone has marked Exhibits M-1 to M-23. The 2nd respondent has not marked any document and both the sides did not let in any oral evidence. The Labour Court has thoroughly scrutinized all the documents marked by the management before it. Learned counsel for the petitioner confined his arguments only in respect of the first charge-memo. In respect of the first charge memo, the management has relied upon exhibits M-l to M-4 complaints made by kaliappan, Ramaswamy, Pandmanabhan and palanisamy respectively against the 2nd respondent relating to the occurrence dated september 28, 1990, wherein it is alleged that the 2nd respondent has prevented the said kaliappan from attending duty. After receipt of the said exhibits the management has issued Exhibit M-5 dated February 8, 1991 show cause notice calling upon the 2nd respondent to submit his explanation. He has submitted his explanation under Exhibit M-6, dated February 16, 1991 denying all the averments. The enquiry officer submitted his report under Exhibit M-8. At this juncture it is necessary to keep in mind the relevant portions of the award of the Labour Court that the management has not taken any immediate action to award punishment on the basis of the report of the enquiry officer in respect of the first charge memo, however, the management issued second charge memo exhibit M-13, dated July 3, 1991 based on the complaint preferred by the management witnesses Padmanabhan and Palanisamy under Exhibits M-11 and M-12 alleging that during the cross-examination the second respondent has made some false and defamatory questions during enquiry relating to the first charge memo, but chosen to impose punishment under Exhibit M-21 only after the enquiry to the 2nd charge memo was over. The labour Court further held that since the management was aware there is no substance in the first charge memo it delayed in serving the charges and also postponed its decision of awarding punishment. It was evident that enquiry was over as early as on July 23, 1991 and the 2nd respondent also submitted his further reply under Exhibit M-10, dated July 31, 1991 but the management delayed in awarding punishment. The first charge memo was that during the evening hours on september 27, 1990 the 2nd respondent has threatened one Kaliappan not to attend duty when the strike was going on, again on september 28, 1990, he prevented and threatened the same person from attending the office on September 28, 1990. The said kaliappan also admitted in his cross- examination he has come to the factory only to worship God and not to attend duty since it was declared as holiday on account of ayudha Pooja. The Labour Court extracted the said evidence and came to the right conclusion that the finding of the enquiry officer is unsustainable. The Labour Court has further held that if really the said incident as alleged under Exhibits M-1 to M-4 had taken place, the management would not have waited for a period of three months and 10 days to issue the charge memo Exhibit M-5, dated february 8, 1991 that too when the strike was called off as early as December 10, 1990. I am of the view that the Labour Court has rightly found that the first charge memo issued against the 2nd respondent is nothing but an attempt of victimisation. Of course, the delay of three months and 10 days is not extraordinary one but in this case such unexplained delay has exposed the mala fide intention of the management besides it is fatal to their case. There is no allegation against the 2nd respondent that he led the strike and indulged in any of violent and illegal acts. Therefore the contention on behalf of the management for justifying the punishment of dismissal the conduct of the 2nd respondent was grave in nature is beyond the scope of the allegation and charges. When a large number of workmen went on strike, charges were framed only against the 2nd respondent. Hence the Labour court is right in setting aside the order of dismissal passed against the 2nd respondent. No doubt that though in a case of proved misconduct the imposition of penalty may be within the discretion of the management, there may be cases where punishment of dismissal for misconduct may be so unconscionable or so grossly out of proportion to the nature of offence that the Labour Court may be able to draw an adverse inference merely from the punishment inflicted. The Labour Court has taken into account the fact that the 2nd respondent participated in the strike but the same was not declared as illegal. ;