Karma Management has been in this field for over two decades having on its roll a team of expert and dedicated Lawyers and Advocates who represent the clients on various matters including industrial disputes , labour law litigations and grievance procedures , breaches, violations of labour laws, notices and summons , arrest warrants and prosecutions , penalties and fines etc. before the Tribunals and Labour Courts including issues on PF 7A enquiry and ESI proceedings in ESI Court. The employer has the right to take disciplinary actions and karma’s Advocates have been efficient in restoring the rights of the employers in such cases.
Cases handled by Karma Management’s team of Lawyers and Advocates :
Industrial Disputes Act, 1947
Cases under workmen compensation
Employees State Insurance Act
Provident Fund Act
Profession Tax Act
Factories Act Cases
Standing Orders Act
Discretion is the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives . Judicial discretion is a very broad concept because of the different kind of decisions made by judges within the same given circumstances. The exercise of discretionary power conferred on a judge is omnipotent in judicial proceedings. Some degree of discretion is unavoidable because legislature cannot foresee every eventuality which may come in judicial proceedings. The term judicial discretion has nowhere been defined in the statues though it is exercised regularly by courts of law. It is exercised when a judge is conferred a power under a statute that requires the judge to choose between several different, but equally valid, courses of action.
Karma Management takes a broad look keeping in mind the finer aspects of this case as an illustration , at all times when it comes to handling of disputes and litigations brought before them by various clients who have offered their labour law services to be handled by us where such issues are debated and discussed judiciously by our team of Advocates and closed as per settled principles.
(1) Management, Tamilnadu State Transport Corporation (villupuram) Limited
versus
Presiding Officer, I Additional Labour Court, Vellore
(High Court Of Judicature At Madras)
Writ Petition No. 37956 of 2016;
Writ Miscellaneous Petition No. 32551 of 2016 | 24-01-2020
K Ravichandrabaabu, J. – The Tamilnadu State Transport Corporation (Villupuram) Limited/Management is the writ petitioner. Challenge made herein is against the award passed by the Labour Court in I.D.No.172 of 2014 dated 25.05.2015. Through the impugned award, the Labour Court set aside the order of termination of the service of the second respondent and directed the Management to reinstate him with continuity of service, however without backwages. The Labour Court also ordered that the second respondent is not entitled to leave salary, bonus and annual increment during the period in which he was not working.
There is no quarrel or doubt with regard to the discretionary power vested on the Labour Court under section 11-A of the said Act. The question is as to how and under what circumstances such power has to be exercised. The discretionary power vested on the Labour Court cannot be exercised mechanically and the punishment be modified or altered without assigning any reason as to why the punishment imposed by the Management is unjustified. A discretionary power thus has to be exercised cautiously, judicially and judiciously. It has already been pointed out that there is no finding rendered by the Labour Court as to how the punishment imposed on the workmen in this case is unjustified. On the other hand, the Labour Court has chosen to modify the punishment only based on sympathy. The Division Bench decision of this Court in The Management of Tafe case relied on by the learned counsel for the second respondent also observed that this Court under Article 226 of the Constitution of India should not undertake to re-examine the question of adequacy or inadequacy of the materials for interference by the Labour Court, when a power under section 11-A of the said Act has been exercised, only in the absence of any important legal principle. At paragraph No.3, the Division Bench has observed as follows:
The well accepted principle on the question of exercise of powers under Section 11A of the Industrial Dispute Act, 1947, hereinafter referred to as the Act, to evaluate the gravity of misconduct for the purpose of the punishment to be imposed on a workman is, that once that power has been exercised, this Court under Article 226 of the Constitution of India, in the absence of any important legal principle, should not undertake to re-examine the question of adequacy or inadequacy of the materials for interference by Labour Courts.”
Therefore, it is evident that there is no total bar for this Court to interfere against the award passed by the Labour Court in exercise of its discretionary power under section 11-A, in all cases. On the other hand, if this Court finds that the important legal principle is either violated or not followed, while exercising such power by the Labour Court, this Court is empowered to re-examine the question of adequacy or inadequacy of the materials for the interference by the Labour Court.
Likewise, in the other Division Bench decision of this Court made in The President, Cholan Pokkuvarathu Kazhagam case relied on by the learned counsel for the second respondent, it is specifically observed that the Labour Court can differ from the findings rendered by the employer on the misconduct, only if a proper case is made out. Therefore, it is found that the above decisions relied on by the learned counsel for the second respondent are not helping him in any manner.
The power conferred on the High Court under Article 226 of the Constitution of India is certainly superior power than that of the statutory discretionary power conferred on the Labour Court under Section 11A. Therefore, it is not right to contend that this Court while exercising the constitutional power is not empowered to interfere with the order of the Labour Court passed in exercise of such statutory power.
While considering the proportionality of the punishment imposed by the Management, it is seen that entire facts and circumstances and the past conduct of the workman would only justify such punishment. The second respondent herein is not a person with clean service record. He was punished with minor punishment for 64 times for temporary misappropriation and also for short payment of the amount collected. Apart from the above delinquencies committed for 64 times, the second respondent was also punished 9 times for not remitting the collection within the time stipulated. Further, he was punished for 6 times for unauthorized absence. He was also punished for 9 times for dereliction of his duty such as not issuing tickets to the passengers and for being in an inebriated condition during the working hours. Therefore, all these past conduct of the second respondent would undoubtedly indicate that he is of the person habitually committing the delinquency again and again, unmindful of the punishment imposed by the Management in all those occasions.
At this juncture, it is to be emphasized that utmost discipline is to be maintained in the work place and therefore, it is the duty of the Management to ensure maintenance of such discipline at all times. A misconduct committed as the first time may be a lapse. If it is repeated second time, it becomes a wrong. Committing the same misconduct third time is undoubtedly an offence, more particularly, when the workman has chosen to commit such misconduct again and again, even after suffering minor punishments on each occasions. The act of committing the repeated offence, though minor in nature, becomes a grave misconduct, certainly warranting major punishment. If one has not corrected himself despite suffering several minor punishments, his continued presence in the work place, would certainly shake the morale of the other employees.
It is not known as to why the Management has given such long rope to the second respondent in imposing the minor punishments, even though some of the delinquency committed such as short payment amounts to permanent misappropriation, are serious charges. Therefore, it is evident that the second respondent is not a fit person to continue in service. Accordingly, the Management has rightly taken a decision to dismiss him from service, which in my considered view, does not require any interference. Therefore, the Labour Court was not justified in interfering with such punishment.
In view of the above stated facts and circumstances, this Court is not convinced to accept the last submission made by the learned counsel for the second respondent for at least modifying the punishment as one of compulsory retirement.
Thus, the moral of the story is that if one commits misconduct repeatedly and suffers only minor punishment for the same, let him not think that he will escape at all times and be aware that a major punishment awaits him, if he commits the same misconduct once again.
Accordingly, the writ petition is allowed and the impugned award is set aside and consequently, the punishment imposed by the Management against the second respondent is restored. No costs. The connected miscellaneous petition is closed.
