MGMT. OF SUNDARAM INDUSTRIES LTD. Vs SUNDARAM INDUSTRIES EMPLOYEE UNION
Bench: T.S. THAKUR,VIKRAMAJIT SEN
Case number: C.A. No.-011016-011016 / 2013
Diary number: 23578 / 2011
Advocates: SYED SHAHID HUSSAIN RIZVI Vs
S. L. ANEJA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11016 OF 2013 (Arising out of S.L.P. (C) No.22463 of 2011)
Management of Sundaram Industries Ltd. …Appellant
Versus
Sundaram Industries Employees Union … Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This appeal arises out of a judgment and order dated
27th April, 2011 passed by a Division Bench of the High
Court of Judicature at Madras whereby Writ Appeal No.702
of 2011 and M.P. No.1 of 2011 filed by the appellant have
been dismissed and order dated 28th February, 2011 passed
by a learned Single Judge of that Court in Writ Petition
No.8019 of 2010 affirmed.
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3. The appellant-company is engaged in the manufacture
of rubber products for various industrial applications. It had,
at the relevant point of time, 877 employees in its
establishment. As many as 488 of these employees were
working as moulders to operate the rubber moulding
machines. The moulding work involved placing rubber into
the moulding press which would then be pressed into rubber
components and marketed for varied industrial and
commercial uses.
4. In March 1999, the management of the appellant-
company required the workmen engaged as moulders to
place their individual bags of production on the weighing
scale at the end of their work shift. That procedure was
observed for about a week whereafter 13 out of 488
moulders declined to abide by the instructions issued by the
management. The defaulting members of the work force
were on that basis placed under suspension by the
management. Aggrieved by the action taken against its
members, the respondent-union raised a dispute before the
Labour Officer who advised the union and its workmen to
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tender an apology to the management and an undertaking
to the effect that they would not repeat their acts in future.
5. The appellant’s case is that despite the apology and
undertaking furnished pursuant to the said advice, the
defaulting workmen not only continued disobeying the
instructions but succeeded in enticing three others to follow
suit, thereby disrupting the work in the factory. The
appellant took note of the disobedience shown by the
workmen concerned and initiated disciplinary proceedings
against them in April, 1999. Pending such proceedings the
workmen concerned were placed under suspension on the
charge of their having persistently refused to follow the
instructions despite an apology and undertaking furnished
by them earlier. The inquiry initiated against the workmen
culminated in the dismissal of the delinquent workmen
based on the charges of misconduct, persistent disobedience
and insubordination proved against them. The respondent-
union once again espoused the cause of the workmen and
approached the Industrial Tribunal, Chennai in a reference
made by the Government for adjudication of the dispute.
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The Tribunal came to the conclusion that although the
domestic inquiry conducted by the management against the
delinquent workmen was fair and proper and the charges
stood proved, the punishment of dismissal imposed upon the
workmen was shockingly disproportionate to the gravity of
the offence. The Tribunal accordingly set aside the order of
dismissal passed against the workmen and directed their
reinstatement with 50% back wages.
6. Aggrieved by the award made by the Tribunal, the
appellant preferred Writ Petition No.8019 of 2010 before the
High Court at Madras which was heard and dismissed by a
learned Single Judge of that Court by his order dated 28 th
February, 2011. Writ Appeal No.702 of 2011 and M.P. No.1
of 2011 filed by the management also failed and were
dismissed by a Division Bench of that Court. The present
appeal assails the said orders as noticed above.
7. Appearing for the appellant Mr. K.K. Venugopal,
learned senior counsel, strenuously argued that the Tribunal
and so also the High Court were in error in interfering with
the punishment imposed upon the defaulting workmen. He
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urged that the conduct of the delinquent workmen was
wholly unjustified having regard to the fact that they had, in
the course of the proceedings before the Labour Officer,
Madurai, not only apologised for their misconduct but filed
an undertaking in writing to obey their superior officers in
the future. It was only on that basis that the management
had revoked the orders of suspension issued by it and
permitted the workmen to resume their duties. Viewed in
that background the workmen were not justified, argued Mr.
Venugopal, to go back on their promise and undertaking and
refuse to place their individual bags of production on the
weighing scale as instructed to do so. Inasmuch as the
workmen had continued with their deliberate and defiant
attitude despite a chance given to them to improve their
conduct, they did not deserve any sympathy, nor could the
punishment of dismissal from service on proof of the
charges framed against them be considered disproportionate
to the gravity of the misconduct committed by them.
8. On behalf of the respondent-union it was argued by Mr.
V. Prakash that the Tribunal and so also the High Court were
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justified in interfering with the orders of dismissal passed
against the workmen. The orders of dismissal were,
according to the learned counsel, not only on facts but even
in equity unsustainable, the same having been passed in a
spirit of vengeance and with a view to deter other workmen
from objecting to a practice which was, on the face of it,
unjustified involving additional work beyond the shift hours
without the management paying any additional wages for
the same. The Tribunal and the High Court having exercised
their powers fairly and reasonably, there was, according to
the learned counsel no reason, much less a compelling one,
for this Court to interfere with the impugned orders.
9. The short question that falls for determination is
whether the Tribunal and the High Court were justified in
holding that the penalty of dismissal imposed upon the
workmen was disproportionate to the gravity of the
misconduct allegedly committed by them. Whether or not
the punishment is disproportionate more often than not
depends upon the circumstances in which the alleged
misconduct was committed, as also the nature of the
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misconduct. That makes it necessary for us to briefly refer
to the real controversy that gave rise to the proceedings
culminating in the dismissal of the workmen. The
proceedings, it is common ground, started with a report
dated 11th April, 1999 submitted by the Supervisor to the
Manager (Personnel) in which he said:
“All the workmen had been earlier informed that instead of placing the bags of their production on the floor at end of shift they were to place the bags on the electronic weighing scale placed there. Mr. J.D. Jose Balan also knows about it. While all the workmen were adhering to the above procedure, Mr. Jose Balan refused to place his bag of production on the weighing scale on the above said dates. Every time I mentioned about this he said “my shift time has ended. I will not work after that. Therefore I cannot weigh.” On all the days he refused to do the work, I informed him that work even for five minutes after shift end, cannot be considered as overtime and that already he was working only for 7-1/2 hours in a shift of 8 hours the balance half hour being lunch time and so he would be wrong in saying that shift has ended or this is more work. In spite of this he refused to do that work, but placed the bags of washers produced on the floor and left without getting his time-card signed.”
10. It is evident from the above that the discord between
the workmen and the management arose entirely out of the
management requiring the workmen to place the bag of
their production on the electronic weighing scale instead of
placing them on the floor at the end of the shift as they were
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doing till the management issued fresh instructions that
demanded that the workmen carry their production bags to
the electronic weighing scale for weighment. The workmen
considered this additional responsibility to be involving not
only additional work in carrying the production bag to the
weighing machine but also in devoting additional time
beyond the shift hours without any additional remuneration
for the same. The workmen set out the necessary facts in
the claim statement filed by the Union on their behalf before
the Industrial Tribunal in which they stated:
“The management had also directed the moulders to put all the produced rubber washers in a gunny bag and tie them, which work was hitherto done by another team. For this work also, the management promised higher wages and the workers are now doing both the aforesaid works, but the management failed to fulfil its promise to pay higher wages for doing the extra work. This takes one hour more to do the quality control check and also put all the manufactured washers into the gunny bag after the shift hours. For this overtime work, the management is not giving any overtime pay to the workers.”
11. Before the Tribunal the respondent-union adduced
evidence to substantiate their claim that the instructions
issued by the management required the workmen to tie the
bag of their production, carry the same to the weighing
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machine, wait for their turn in a queue to have the
production bag weighed and get the necessary entries
regarding the same made, which in turn took upto an hour
after the shift was over. Deposition of S. Thangaswamy,
President of the respondent-union, in this regard is relevant
when he states :
“In the respondent establishment the work of the moulders is only to do the operations in connection with the production of the rubber auto components. The inspection of the components produced was that of another group consisting of the Manager, Supervisors and a team of ten workmen. The Management suddenly disbanded this group and directed the moulders themselves to do the inspection of the components produced. The Management assured to monetarily compensate the moulders for this additional work. In addition the Management directed them to put and keep the finished components in a bag. For this also the Management assured to monetarily compensate the moulders.
They had to bag the components produced after shift was over and take it, stand in a queue and have the bags weighed. The weighing machine was situated about 100 to 150 feet from the production table. The weight of the bags containing the washers produced by me could be from 10 kilos to 150 kilos. After weighment the weight must be entered in the press card and we must have to stand in queue to get it signed as well as the time card. To do all this, it will take one hour. As measure of victimisation disciplinary action was taken against 15 workers for having raised a dispute before the court and we were dismissed.”
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12. More importantly, the deposition of Mr. Damodaran a
witness examined by the appellant who was at the relevant
point of time working as manager in the moulding
department, makes it clear that the workman had refused
to place bags on the weighing machine at the end of the
shift as any such work had to be done after the shift hours.
This is evident from the following part of the deposition:
“We have three shifts. 8 AM to 4 PM; 4PM to 12 Midnight, 12 Midnight to 9 AM. It will be right to say that the Management’s charge against the workmen concerned in the dispute is that they refused to place the bags on the weighing machine at end of shift. The stand of the workman is that they will not do this work after shift hours.”
13. It is thus evident that the refusal of the workmen to
carry out the instructions issued by the management was
not without a lawful or reasonable justification. The same
could not at any rate be described as contumacious. The
essence of the matter was whether the management could,
without additional remuneration, ask the workmen who were
responsible for attending to the production work alone to do
additional work which was hitherto being done by another
group of workmen, especially when compliance with the
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instructions to the workmen would require them to tie their
production bags, carry them to the weighing machine, wait
in the queue till the process was to be completed and leave
only thereafter. In the course of hearing before us, it was
fairly conceded by the representative of the appellant that
since the number of moulders working in the establishment
was fairly large and weighing machines limited in number,
the workmen had to wait in a queue for their turn to have
their production weighed which was earlier being done by
some other workmen who were disbanded. Inasmuch as the
workmen concerned had declined to undertake this
additional responsibility which was not only consuming
additional time but also additional effort they could not be
accused of either deliberate defiance or misconduct that
could be punished. The Tribunal was in that view wrong in
holding that the charge framed against the respondents was
proved. Refusal to carry out the instructions requiring
workmen to do additional work beyond the shift hours was
clearly tantamount to changing the conditions of service of
the workmen which was impermissible without complying
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with the requirements of Section 9-A of the Industrial
Disputes Act.
14. On behalf of the appellant it was contended that the
respondents-workmen were not legally entitled to assail the
finding of the tribunal, on the charges framed against them,
as the workmen had not assailed the award made by the
Tribunal before the High Court. The findings of the Tribunal
had on that account attained finality. We do not think so.
The Tribunal had no doubt held the charges to have been
proved but it had, despite that finding, set aside the
dismissal of the workmen on the ground that the same was
disproportionate to the gravity of the misconduct. It had on
that basis directed reinstatement with 50% back wages. To
that extent the award was in favour of the workmen which
they had no reason to challenge. But that did not mean that
in any proceedings against the award the respondent
workmen could not support the direction for their
reinstatement on the ground that the finding of the Tribunal
regarding proof of misconduct was not justified. The legal
position is fairly well settled that a judgment can be
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supported by the party in whose favour the same has been
delivered not only on the grounds found in his favour but
also on grounds that may have been held against him by the
Court below. This is evidenced from Order XLI Rule 22 of
the CPC which reads :
“22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. - (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
[Explanation.--A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]
(2) Form of objection and provisions applicable thereto. - Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
3[***]
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be
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heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.”
15. The principle underlying the above provision is
applicable even to Appeals by Special Leave under Article
136 of the Constitution of India as held by this Court in
Jamshed Hormusji Wadia v. Board of Trustees, Port of
Mumbai and Anr. 2004 (3) SCC 214, where this Court
observed:
“35. A few decisions were brought to the notice of this Court by the learned Additional Solicitor General wherein this Court has made a reference to Order 41 Rule 22 CPC and permitted the respondent to support the decree or decision under appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. Illustratively, see Ramanbhai Ashabhai Patel, Northern Rly. Coop. Society Ltd. and Bharat Kala Bhandar Ltd. The learned Additional Solicitor General is right. But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to courts of superior jurisdiction. A person who has entirely succeeded before a court or tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words “person aggrieved”. In an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds
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decided in his favour, yet the order could be sustained by reversing the finding on some other ground which was decided against him in the court below. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman and also Banarsi v. Ram Phal. This Court being a court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own jurisdiction and not by having recourse to Order 41 Rule 33 CPC though in some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deducible therefrom. However, still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed.”
16. We have, therefore, no hesitation in rejecting the
contention that the finding regarding commission of
misconduct by the workmen cannot be assailed by the
workmen in these proceedings.
17. Even assuming that the finding regarding the
commission of misconduct is left undisturbed, the
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circumstances in which the workmen are alleged to have
disobeyed the instructions issued to them did not justify the
extreme penalty of their dismissal. At any rate, the Labour
Court having exercised its discretion in setting aside the
dismissal order on the ground that the same was
disproportionate, the High Court was justified in refusing to
interfere with that order under Article 226 of the
Constitution. There is in any event no compelling reason for
us to invoke our extraordinary power under Article 136 of
the Constitution or to interfere with what has been done by
the two Courts below. But for the fact that there is no appeal
or challenge to the denial of full back wages to the
workmen, we may have even interfered to award the same
to the workmen. Be that as it may, this appeal is destined
to be dismissed and is, hereby, dismissed with costs
assessed at Rs.25,000/-
…………………….……….…..…J. (T.S. THAKUR)
…………………………..…………J. New Delhi (VIKRAMAJIT SEN)
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December 13, 2013
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