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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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