. 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
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.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
Citation;(2014) 2 SCC 600
T.S. THAKUR, J.1
Dated;December 13, 2013
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.
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.
were
on
that
The defaulting members of the work force
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
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.
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
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
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
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
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
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.”
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
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
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
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
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
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
commission
assuming
of
that
misconduct
the
is
finding
left
regarding the
undisturbed, the
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.
(VIKRAMAJIT SEN)
New Delhi
December 13, 2013
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