Full Judgment Text
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CASE NO.:
Appeal (civil) 2106 of 2007
PETITIONER:
MANAGEMENT OF COIMBATORE DISTRICT CENTRAL CO-OPERATIVE BANK
RESPONDENT:
SECRETARY, COIMBATORE DISTRICT CENTRAL CO-OPERATIVE BANK EMPLOYEES ASSOCIATION & ANR
DATE OF JUDGMENT: 23/04/2007
BENCH:
C.K. THAKKER & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
CIVIL APPEAL No. 2106 OF 2007
Arising out of
Special Leave Petition (Civil) No. 5187 OF 2005
C.K. THAKKER, J.
Leave granted.
A Public Utility Undertaking (Co-operative Bank)
challenges in this appeal an order passed by a Single
Judge of the High Court of Judicature at Madras dated
September 18, 2000 in Writ Petition No. 11948 of 1993
and modified by the Division Bench of the said Court on
November 3, 2004 in Writ Appeal No. 45 of 2001.
FACTUAL MATRIX
To appreciate in its proper perspective an important
question raised in the appeal, it is necessary to set out
relevant facts.
The appellant is Coimbatore District Central Co-
operative Bank having its head office at Coimbatore. It is
having 17 branches in the Revenue District of
Coimbatore. It is the case of the appellant-Bank that the
Coimbatore District Central Bank Employees Association
(’Union’ for short) gave a ’strike notice’ on March 31,
1972 which was received by the Management on April 5,
1972 proposing to go on strike from April 14, 1972. The
reason for such notice and going on strike was
suspension of certain employees and withholding of their
salary by the Management. Since the strike-call was
illegal and the notice was not in consonance with the
provisions of the Industrial Disputes Act, 1947
(hereinafter referred to as "the Act"), the action of going
on strike was unlawful. The Union was accordingly
informed not to go on strike. The Labour Officer,
Coimbatore in the meanwhile commenced Conciliation
Proceedings in connection with certain issues raised by
the Union. Despite proper advice by Labour Officer, the
employees commenced strike from April 17, 1972. The
strike was totally illegal and unlawful. On April 19,
1972, notice was issued to the Union stating therein that
the workmen should join duties by April 22, 1972 by
tendering unconditional apology. The employees accepted
it. A settlement had been arrived at between the
Management and the Union and 134 employees gave up
’strike call’ and resumed work. 53 employees, however,
refused to join duty and continued their illegal strike and
acts of misconduct. The illegal acts of employees affected
the work of the Bank very badly. It was alleged that not
only the workmen did not join duty and continued illegal
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and unlawful strike, but also prevented other employees
from resuming duty and threatened them with dire
consequences if they returned for duty. Disciplinary
proceedings were, therefore, initiated against 53
workmen, they were placed under suspension and
inquiry was instituted. The employees were intimated of
the charges levelled against them, which they denied. In
spite of notices, the workmen did not participate in
disciplinary proceedings and remained absent. The
Management was, therefore, constrained to proceed with
the disciplinary inquiry ex parte against them. By an
order dated January 6, 1973, the workmen were held
guilty of the charges and an order of punishment was
passed. By the said order, two punishments were
awarded on the workmen; (i) stoppage of increment for 1-
4 years with cumulative effect; and (ii) non-payment of
salary during the period of suspension. According to the
Bank, the case was an appropriate one to impose
extreme penalty of dismissal from service, but by taking
liberal view, the extreme punishment was not imposed on
the employees and they were retained in employment by
the Bank. The workmen joined duty on January 17,
1973. They should have accepted the order gracefully
and appreciated the attitude adopted by the
Management. The workmen, however, did not do so.
They preferred to file appeal which was dismissed by the
Executive Committee.
DECISION OF LABOUR COURT
The workmen, being aggrieved by the decision,
raised an industrial dispute and the matter was referred
to Labour Court, Coimbatore by the Government under
Section 10 of the Act. The Labour Court after extending
opportunity of hearing to both the sides and considering
the evidence on record framed the following two issues;
1. Whether the punishment of stoppage of 1 to 4
increments with cumulative effect on the 1 to
53 workers is justified?
2. Whether the 53 workmen are entitled to be
paid wages for the period of suspension?
After considering the evidence in its entirety and
relevant case law on the point, the Court held that all the
four charges levelled against the workmen were proved.
It also held the inquiry to be legal, valid and in
consonance with the principles of natural justice. The
evidence established that threat was administered by the
employees.
The Labour Court concluded;
"Unlike criminal cases it is not necessary
that the evidence should be beyond doubt.
Nevertheless, the witnesses have given clear
evidence to prove charges. Therefore, we have
to accept them and hold that charges 1 to 4
have been proved against all the 53
employees."
On the basis of the above finding, the Labour Court
held that it could not be said that the action of the
Management could be described as illegal, unlawful or
improper. Accordingly, the demands of the workmen
were rejected and reference was dismissed.
APPROACH OF HIGH COURT
Being aggrieved by the award passed by the Labour
Court, the Union approached the High Court by filing a
Writ Petition. The learned Single Judge did not disagree
with the findings recorded by the Labour Court and held
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that the workmen were not entitled to wages for the
period they had not worked. As to the second
punishment, however, the learned Single Judge held that
stoppage of 1 to 4 annual increments with cumulative
effect was ’harsh’. The penalty of stoppage of annual
increments with cumulative effect had far-reaching
consequences. It would adversely affect the workmen
throughout their service and in retrial benefits to be
received by them. It would further affect their families.
Imposition of such punishment, according to the learned
Single Judge, was ’not valid in law’ and liable to be set
aside. The petition was, accordingly, partly allowed
confirming the withdrawal of wages for the period of
suspension, but by setting aside the order of punishment
of stoppage of increments. The Management was
directed to pay the arrears in respect of stoppage of
increments to the workmen with ’interest at the rate of
12% per annum’ within sixty days from the date of receipt
of the copy of the order.
The Management was aggrieved by the above order
passed by the learned Single Judge and preferred intra-
court appeal before the Division Bench of the High Court.
The Division Bench rightly noted that it is settled law
that the question of choice and quantum of punishment
is within the discretion of the Management. "But, the
sentence has to suit the offence and the offender". If it is
unduly harsh or vindictive, disproportionate or shocks
the conscience of the Court, it can be interfered with by
the Court. Then referring to a leading decision of this
Court in Ranjit Thakur v. Union of India & Ors., (1987) 4
SCC 611, the Division Bench held that the order passed
by the learned Single Judge required modification. The
Division Bench opined that proper punishment would be
stoppage of increment/increments without cumulative
effect on all 53 employees would serve the ends of justice.
The Division Bench also held that the order passed by
the learned Single Judge directing the Management to
pay interest was not proper and was accordingly set
aside. It is this order which is challenged by the
Management in the present appeal.
RIVAL SUBMISSIONS
We have heard the learned counsel for the parties.
The learned counsel for the appellant-Bank
contended that both, the learned Single Judge as well as
the Division Bench of the High Court, were in error in
interfering with the order of punishment passed by the
Management particularly when the said action had been
confirmed by a well-considered and well-reasoned award
made by the Labour Court, Coimbatore. It was urged
that once an inquiry has been held to be in consonance
with rules of natural justice, charges had been proved
and an order of punishment had been passed, it could
not have been set aside by a ’Writ-Court’ in judicial
review. The Labour Court recorded a finding of fact
which had not been disturbed by the High Court that
principles of natural justice were not violated. The
inquiry was conducted in consonance with law and all
the charges levelled against the employees were
established. If it is so, the High Court was clearly wrong
in interfering with the award of the Tribunal. According
to the counsel, the High Court was neither exercising
appellate power over the action taken by the Management
nor on quantum of punishment awarded. The Court was
also not having appellate jurisdiction over the Labour
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Court. The jurisdiction of the High Court under Article
226/227 of the Constitution was limited to the exercise of
power of judicial review. In exercise of that power, the
High Court could not substitute its own judgment for the
judgment/order/action of either the Management or the
Labour Court. The order of the High Court, therefore,
deserves to be quashed and set aside. It was also urged
that even if it is assumed that the High Court has
jurisdiction to enter into such arena, then also, in the
facts and circumstances of the case and considering the
allegations levelled and proved against the workmen, it
cannot be said that an order of stoppage of
increment/increments with cumulative effect could not
have been made. On the contrary, the matter was very
serious which called for much more severe penalty, but
by taking liberal view, the Management had imposed only
a ’minor’ penalty. Such reasonable order could not have
been set aside by the High Court. The counsel submitted
that ’Banking service’ is an ’essential service’. It has
public utility element therein and it was the duty of the
employees connected with such service to discharge their
duties sincerely, faithfully and whole-heartedly. In the
instant case, not only the workmen refused to join duty,
but they prevented other employees who had amicably
settled the matter with the Management in discharging
their duties by administering threat and by successfully
obstructing the Management in the discharge of its
obligations as Public Utility Undertaking. Serious view,
therefore, was called for. There was total and complete
misconception on the part of the High Court in holding
that the punishment was ’harsh’. It was, therefore,
submitted on behalf of the Management that the order
passed by the learned Single Judge and modified by the
Division Bench deserves to be set aside by confirming the
action taken by the Management and approved by the
Labour Court, Coimbatore.
The learned counsel for the respondent-Union, on
the other hand, supported the order passed by the
Division Bench of the High Court. According to him, the
learned Single Judge was fully justified in partly allowing
the petition observing that the punishment imposed on
the workmen was ’clearly harsh’ and in setting aside that
part of the punishment by which increment/increments
was/were stopped. Since the punishment imposed by
the Management was grossly disproportionate, the
learned Single Judge was also right in directing the Bank
Management to pay salary with 12% interest. It is no
doubt true, stated the learned counsel, that the Division
Bench partly set aside the direction of the learned Single
Judge by modifying the punishment permitting stoppage
of increment/increments of the workmen without
cumulative effect and by setting aside payment of salary
with 12% interest, but as the said part of the order
passed by the Division Bench has not been appealed
against by the Union, it would remain. But no case has
been made out by the Bank Management to interfere with
the order of the Division Bench and the appeal deserves
to be dismissed.
FINDINGS RECORDED
We have given our most anxious and thoughtful
consideration to the rival contentions of the parties. From
the facts referred to above and the proceedings in the
inquiry and final order of punishment, certain facts are
no longer in dispute. A call for strike was given by the
Union which was illegal, unlawful and not in consonance
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with law. Conciliation proceedings had been undertaken
and there was amicable settlement of dispute between
the Management on the one hand and the Union on the
other hand. Pursuant to such settlement, 134 workmen
resumed duty. 53 workmen, however, in spite of the
strike being illegal, refused to join duty. Their action
was, therefore, ex facie illegal. The workmen were, in the
circumstances, placed under suspension and disciplinary
proceedings were initiated. In spite of several
opportunities, they did not co-operate with the inquiry
and the Inquiry Officer was compelled to proceed ex parte
against them. Four allegations were levelled against the
workmen;
(i) The employees did not come for work from
April 17, 1972;
(ii) They took part in illegal strike from that date,
i.e. April 17, 1972;
(iii) They prevented other employees who returned
for work from joining duty by administering threat to
them; and
(iv) They prevented the employees who came to
receive wages on April 17, 1972.
At the enquiry, all the charges levelled against the
employees were established. In the light of the said
finding, the Management imposed punishment of (i)
stoppage of increment of 1 to 4 years with cumulative
effect; and (ii) non-payment of salary during period of
suspension. In our considered opinion, the action could
not be said to be arbitrary, illegal, unreasonable or
otherwise objectionable. When the Union challenged the
action and reference was made by the ’appropriate
Government’ to the Labour Court, Coimbatore, the
Labour Court considered all questions in their proper
perspective. After affording opportunity of hearing to
both the parties, the Labour Court negatived the
contention of the Union that the proceedings were not in
consonance with principles of natural justice and the
inquiry was, therefore, vitiated. It held that the inquiry
was in accordance with law. It also recorded a finding
that the allegations levelled against the workmen were
proved and in view of the charges levelled and proved
against the workmen, the punishment imposed on them
could not be said to be excessive, harsh or
disproportionate. It accordingly disposed of the reference
against the workmen. In our considered opinion, the
award passed by the Labour Court was perfectly just,
legal and proper and required ’no interference’. The High
Court, in exercise of power of judicial review under Article
226/227 of the Constitution, therefore, should not have
interfered with the well-considered award passed by the
Labour Court.
The learned counsel for the Union, however,
submitted that under the ’doctrine of proportionality’, it
was not only the power, but the duty of the ’Writ Court’
to consider whether the penalty imposed on workmen
was in proportion to the misconduct committed by the
workmen. Our attention, in this connection, was invited
by both the sides to several decisions of English Courts
as also of this Court.
DOCTRINE OF PROPORTIONALITY
So far as the doctrine of proportionality is
concerned, there is no gainsaying that the said doctrine
has not only arrived at in our legal system but has come
to stay. With the rapid growth of Administrative Law and
the need and necessity to control possible abuse of
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discretionary powers by various administrative
authorities, certain principles have been evolved by
Courts. If an action taken by any authority is contrary to
law, improper, unreasonable, irrational or otherwise
unreasonable, a Court of Law can interfere with such
action by exercising power of judicial review. One of such
modes of exercising power, known to law is the ’doctrine
of proportionality’.
’Proportionality’ is a principle where the Court is
concerned with the process, method or manner in which
the decision-maker has ordered his priorities, reached a
conclusion or arrived at a decision. The very essence of
decision-making consists in the attribution of relative
importance to the factors and considerations in the case.
The doctrine of proportionality thus steps in focus true
nature of exercise \026 the elaboration of a rule of
permissible priorities.
de Smith states that ’proportionality’ involves
’balancing test’ and ’necessity test’. Whereas the former
(’balancing test’) permits scrutiny of excessive onerous
penalties or infringement of rights or interests and a
manifest imbalance of relevant considerations, the latter
(’necessity test’) requires infringement of human rights to
the least restrictive alternative. [’Judicial Review of
Administrative Action’; (1995); pp. 601-605; para 13.085;
see also Wade & Forsyth; ’Administrative Law’; (2005);
p.366].
In Halsbury’s Laws of England, (4th edn.); Reissue,
Vol.1(1); pp.144-45; para 78, it is stated;
"The court will quash exercise of
discretionary powers in which there is no
reasonable relationship between the objective
which is sought to be achieved and the means
used to that end, or where punishments
imposed by administrative bodies or inferior
courts are wholly out of proportion to the
relevant misconduct. The principle of
proportionality is well established in European
law, and will be applied by English courts
where European law is enforceable in the
domestic courts. The principle of
proportionality is still at a stage of
development in English law; lack of
proportionality is not usually treated as a
separate ground for review in English law, but
is regarded as one indication of manifest
unreasonableness."
The doctrine has its genesis in the field of
Administrative Law. The Government and its
departments, in administering the affairs of the country,
are expected to honour their statements of policy or
intention and treat the citizens with full personal
consideration without abuse of discretion. There can be
no ’pick and choose’, selective applicability of
Government norms or unfairness, arbitrariness or
unreasonableness. It is not permissible to use a ’sledge-
hammer to crack a nut’. As has been said many a time;
"Where paring knife suffices, battle axe is precluded".
In the celebrated decision of Council of Civil Service
Union (CCSU) v. Minister for Civil Service, (1984) 3 All ER
935 : (1984) 3 WLR 1174 : (1985) AC 374 (HL), Lord
Diplock proclaimed;
"Judicial review has I think developed to
a stage today when, without reiterating any
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analysis of the steps by which the development
has come about, one can conveniently classify
under three heads the grounds on which
administrative action is subject to control by
judicial review. The first ground I would call
’illegality’, the second ’irrationality’ and the
third ’procedural impropriety’. This is not to
say that further development on a case by case
basis may not in course of time add further
grounds. I have in mind particularly the
possible adoption in the future of the principle of
proportionality’\005" (emphasis supplied)
CCSU has been reiterated by English Courts in
several subsequent cases. We do not think it necessary
to refer to all those cases.
So far as our legal system is concerned, the doctrine
is well-settled. Even prior to CCSU, this Court has held
that if punishment imposed on an employee by an
employer is grossly excessive, disproportionately high or
unduly harsh, it cannot claim immunity from judicial
scrutiny, and it is always open to a Court to interfere
with such penalty in appropriate cases.
In Hind Construction Co. v. Workmen, (1965) 2 SCR
85 : AIR 1965 SC 917, some workers remained absent
from duty treating a particular day as holiday. They were
dismissed from service. The Industrial Tribunal set aside
the action. This Court held that the absence could have
been treated as leave without pay. The workmen might
have been warned and fined. (But) "It is impossible to
think that any reasonable employer would have imposed
the extreme punishment of dismissal on its entire
permanent staff in this manner." The Court concluded
that the punishment imposed on the workmen was not
only severe and out of proportion to the fault, but one
which, in our judgment, no reasonable employer would
have imposed. (emphasis supplied)
In Indian Chamber of Commerce v. Workmen, (1972)
1 SCC 40 : AIR 1972 SC 763, the allegation against the
employee of the Federation was that he issued legal
notices to the Federation and to the International
Chamber of Commerce which brought discredit to the
Federation \026 the employer. Domestic inquiry was held
against the employee and his services were terminated.
The punishment was held to be disproportionate to the
misconduct alleged and established. This Court observed
that "the Federation had made mountain out of a mole
hill and made a trivial matter into one involving loss of its
prestige and reputation."
In Ranjit Thakur referred to eariler, an army officer
did not obey the lawful command of his superior officer
by not eating food offered to him. Court Martial
proceedings were initiated and a sentence of rigorous
imprisonment of one year was imposed. He was also
dismissed from service, with added disqualification that
he would be unfit for future employment.
Applying the doctrine of proportionality and
following CCSU, Venkatachaliah, J. (as His Lordship then
was) observed:
"The question of the choice and quantum
of punishment is within the jurisdiction and
discretion of the court-martial. But the
sentence has to suit the offence and the
offender. It should not be vindictive or unduly
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harsh. It should not be so disproportionate to
the offence as to shock the conscience and
amount in itself to conclusive evidence of bias.
The doctrine of proportionality as part of the
concept of judicial review, would ensure that
even on an aspect which is, otherwise, within
the exclusive province of the court-martial, if the
decision of the court even as to sentence is an
outrageous defence of logic, then the sentence
would not be immune from correction.
Irrationality and perversity are recognized
grounds of judicial review."
(Emphasis supplied)
DOCTRINE OF PROPORTIONALITY : WHETHER
APPLICABLE
From the above decisions, it is clear that our legal
system also has accepted the doctrine of proportionality.
The question, however, is whether in the facts and
circumstances of the present case, the High Court was
justified in invoking and applying the doctrine of
proportionality. In our judgment, the answer must be in
the negative. Normally, when disciplinary proceedings
have been initiated and finding of fact has been recorded
in such inquiry, it cannot be interfered with unless such
finding is based on ’no evidence’ or is perverse, or is such
that no reasonable man in the circumstances of the case
would have reached such finding. In the present case,
four charges had been levelled against the workmen. An
inquiry was instituted and findings recorded that all the
four charges were proved. The Labour Court considered
the grievances of the workmen, negatived all the
contentions raised by them, held the inquiry to be in
consonance with principles of natural justice and
findings supported by evidence. Keeping in view the
charges proved, the Labour Court, in our opinion, rightly
held that the punishment imposed on workmen could not
be said to be harsh so as to interfere with it.
In our opinion, therefore, the High Court was not
right in exercising power of judicial review under Article
226/227 of the Constitution and virtually substituting its
own judgment for the judgment of the Management
and/or of the Labour Court. To us, the learned counsel
for the appellant-Bank is also right in submitting that
apart from charges 1 and 2, charges 3 and 4 were
’extremely serious’ in nature and could not have been
underestimated or underrated by the High Court.
In this connection, it is profitable to refer to a
decision of this Court in Bengal Bhatdee Coal Co. v. Ram
Prabesh Singh & Ors., (1964) 1 SCR 709 : AIR 1964 SC
486. In that case, the respondents were employees of the
appellant. A strike was going on in the concern of the
appellant. The respondents obstructed loyal and willing
trammers from working in the Colliery and insisted those
workmen to join them in the obstruction. A charge-sheet
was served on the respondents and disciplinary inquiry
was instituted. They were found guilty and were
dismissed from service. Since another reference was
pending, approval of the Industrial Tribunal was sought
which was granted. In a reference, however, the
Industrial Tribunal held that penalty of dismissal was
uncalled for and amounted to victimization. The
Management approached this Court.
Allowing the appeal, setting aside the order of the
Tribunal and upholding the order of dismissal, this Court
stated;
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Now there is no doubt that though in
case of proved misconduct, normally the
imposition of a penalty may be within the
discretion of the management there may be
cases where the punishment of dismissal for
the misconduct proved may be so
unconscionable or so grossly out of proportion
to the nature of the offence that the tribunal
may be able to draw an inference of
victimisation merely from the punishment
inflicted. But we are of opinion that the
present is not such a case and no inference of
victimisation can be made merely from the fact
that punishment of dismissal was imposed in
this case and not either fine or suspension. It
is not in dispute that a strike was going on
during those days when the misconduct was
committed. It was the case of the appellant
that the strike was unjustified and illegal and
it appears that the Regional Labour
Commissioner, Central, Dhanbad, agreed with
this view of the appellant. It was during such a
strike that the misconduct in question took
place and the misconduct was that these
thirteen workmen physically obstructed other
workmen who were willing to work from doing
their work by sitting down between the
tramlines. This was in our opinion serious
misconduct on the part of the thirteen workmen
and if it is found \026 as it has been found \026
proved, punishment of dismissal would be
perfectly justified. (emphasis supplied)
In M.P. Electricity Board v. Jagdish Chandra
Sharma, (2005) 3 SCC 401, this Court held that
dismissal for breach of discipline at workplace by
employee could not be said to be disproportionate to the
charge levelled and established and no interference was
called for on the ground that such punishment was
shockingly disproportionate to the charge pleaded and
proved.
As observed by this Court in M.P. Gangadharan &
Anr. v. State of Kerala & Ors., (2006) 6 SCC 162, the
constitutional requirement for judging the question of
reasonableness and fairness on the part of the statutory
authority must be considered having regard to the factual
matrix in each case. It cannot be put in a straight-jacket
formula. It must be considered keeping in view the
doctrine of flexibility. Before an action is struck down,
the Court must be satisfied that a case has been made
out for exercise of power of judicial review. The Court
observed that we are not unmindful of the development of
the law that from the doctrine of ’Wednesbury
unreasonableness’, the Court is leaning towards the
doctrine of ’proportionality’. But in a case of this nature,
the doctrine of proportionality must also be applied
having regard to the purport and object for which the Act
was enacted.
It was then contended on behalf of 53 workmen that
if the objectionable act on the part of the workmen was
going on strike, all workmen ought to have been treated
equally and even-handedly. The Management was not
right in reinstating 134 employees immediately by
depriving similar benefit to 53 employees. It was,
therefore, submitted that in the facts and circumstances
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of the case, the High Court was right in considering that
aspect. Keeping in view the fact that they (134 workmen)
had joined work and resumed duty, they were paid wages
also. Since other employees (53 workmen) had not joined
duty, the action of the Management of non-payment of
salary may not be interfered with. But if they would be
visited with other penal consequences of stoppage of
increment/increments, the action would be arbitrary and
unreasonable.
We are unable to uphold the contention. In our
considered opinion, 53 employees cannot be said to be
similarly situated to 134 employees who had entered into
amicable settlement with the Management and resumed
duty in 1972. It is settled law that equals must be
treated equally and unequal treatment to equals would
be violative of Article 14 of the Constitution. But, it is
equally well-established that unequals cannot be treated
equally. Equal treatment to unequals would also be
violative of ’equal protection clause’ enshrined by Article
14 of the Constitution. So far as 134 employees are
concerned, they accepted the terms and conditions of the
settlement and resumed work. 53 workmen, on the other
hand, did not accept the settlement, continued with the
strike which was declared illegal and unlawful and in
departmental inquiry, they were found guilty. Moreover,
they resorted to unlawful actions by administering threat
to loyal workers. 53 workmen, therefore, in our
judgment, cannot be said to form one and the same class
in which 134 employees were placed. 53 employees,
therefore, cannot claim similar benefit which had been
granted to 134 employees.
In Union of India v. Parma Nanda, (1989) 2 SCC
177, a similar mistake was committed by the Central
Administrative Tribunal which was corrected by this
Court. In that case, P, an employee was chargesheeted
alongwith other two employees for preparing false pay
bills and bogus identity card. All of them were found
guilty. A minor punishment was imposed on two
employees, but P was dismissed from service since he
was the ’mastermind’ of the plan. P approached the
Central Administrative Tribunal. The Tribunal modified
the punishment on the ground that two other persons
were let off with minor punishment but the same benefit
was not given to P. His application was, therefore,
allowed and the penalty was reduced in the line of two
other employees. The Union of India approached this
Court. It was urged that the case of P was not similar to
other employees inasmuch as he was the principal
delinquent who was responsible for preparing the whole
plan was a party to the fraud and the Tribunal was in
error in extending the benefit which had been given to
other two employees. Upholding the contention, this
Court set aside the order passed by the Tribunal and
restored the order of dismissal passed by the Authority
against him.
The principle laid down in Parma Nanda has been
reiterated recently in Obettee (P) Ltd. V. Mohd. Shafiq
Khan, (2005) 8 SCC 47. In Obettee, M instigated the
workers of the factory to go on strike. He did not allow
the vehicles carrying the articles to go out of the factory
and also administered threat to co-workers. Proceedings
were initiated against three employees. Two of them
tendered unconditional apology and assurance in writing
that they would perform their duties diligently and would
not indulge in strike. The proceedings were, therefore,
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dropped against them. M, however, continued to contest
the charges levelled against him. He was held guilty and
was dismissed from service. The Tribunal upheld the
action. The High Court, however, held that the distinction
made by the Tribunal between M and other two workmen
was ’artificial’ and accordingly granted relief to M similar
to one granted to other two employees.
Setting aside the order of the High Court, upholding
the action taken against him and restoring the order of
the Tribunal, this Court observed that the cases of other
two employees stood on a different footing and the High
Court failed to appreciate the distinctive feature that
whereas the two employees tendered unconditional
apology, M continued to justify his action. The order of
the High Court was, therefore, clearly unsustainable.
It, therefore, cannot be said that the cases of 53
employees were similar to 134 employees and 53
employees were also entitled to claim similar benefit as
extended by the Management to 134 employees.
The net result of the above discussion would be that
the decision rendered by the learned Single Judge and
modified by the Division Bench of the High Court must
be set aside. Certain developments, however, were
brought to our notice by the learned counsel for the
Union. It was stated that though in the departmental
proceedings the workmen were held guilty, their services
were not terminated. They were not paid wages for
intervening period for which they had not worked, but
were allowed to join duty and in fact they resumed work
in the year 1973. This was done before more than three
decades. The Labour Court did not grant any relief to
them. Though the learned Single Judge allowed their
petition and granted some relief, the order was modified
by the Division Bench. 53 employees are now performing
their functions and discharging their duties faithfully,
diligently and to the satisfaction of the appellant-Bank.
No proceedings have been initiated against them
thereafter. ’Industrial peace’ has been restored. If at this
stage, some order will be passed by this Court after so
long a period, it may adversely affect the functioning of
the Bank. It was further submitted that the grievance of
the Bank has been vindicated and correct legal position
has been declared by this Court. The Court in the
peculiar facts and circumstances of the case, therefore,
may not interfere with a limited relief granted by the
Division Bench of the High Court.
In our considered view, the submission is well
founded and deserves acceptance. Hence, even though
we are of the view that the learned Single Judge was not
right in granting benefits and the order passed by the
Division Bench also is not proper, it would not be
appropriate to interfere with the final order passed by the
Division Bench. Hence, while declaring the law on the
point, we temper justice with mercy. In the exercise of
plenary power under Article 142 of the Constitution, we
think that it would not be proper to deprive 53 workmen
who have received limited benefits under the order
passed by the Division Bench of the High Court.
For the foregoing reasons, we hold that neither the
learned Single Judge nor the Division Bench of the High
Court was justified in interfering with the action taken by
the Management and the award passed by the Labour
Court, Coimbatore which was strictly in consonance with
law. In peculiar facts and circumstances of the case and
in exercise of power under Article 142 of the
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Constitution, we do not disturb the final order passed by
the Division Bench of the High Court on November 3,
2004 in Writ Appeal No. 45 of 2001.
The appeal is accordingly disposed of in the above
terms. In the facts and circumstances of the case, there
shall be no order as to costs.